Philippine Bar Exam: Fraternities and the Bar

Posted on March 30, 2012. Filed under: Bar Candidates Hub, Bar Exam Tips & Guide, Bar Matters, Students of Law | Tags: , , , , , , , |

From Wikipedia, the free encyclopedia

 

From Tau Kappa Phi of the FEU Institute of Law to Tau Lambda Kappa, Epsilon Sigma Lambda Phi and Beta Alpha Lambda of the UE College of Law to Mu Kappa Phi and Tri-Delta Lex of the MLQU School of Law to Lambda Rho Beta, Alpha Phi Beta and Lex Talionis of the SBC College of Law and Gamma Delta Epsilon, Suprema Lex and Aegis Juris of the UST Faculty of Civil Law, fraternities and sororities have played a significant role in the lives of law students especially at the point of taking the Philippine Bar Exams. Below is a listing of fraternities and sororities which have produced first placers in the bar exams:

Alpha Phi Beta Fraternity

  • Gregorio R. Castillo (1957)
  • Henry R. Villarica (1971)

Aquila Legis Fraternity

  • Claudio Teehankee (1940)
  • Januario B. Soller Jr. (1972)
  • Vicente R. Solis (1973)
  • Virgilio B. Gesmundo (1977)
  • Gregorio M. Batiller Jr. (1979)
  • Joseph P. San Pedro (1991) – renounced
  • Cesareo Antonio S. Singzon, Jr. (2010)

Beta Sigma Lambda

  • Manuel G. Montecillo (1948)

Delta Lambda Sigma Sorority

  • Janette Susan L. Pena (1985)

Fraternal Order of Utopia

  • Cornelio C. Gison (1963)
  • Arturo D. Brion (1974)
  • Jayme A. Sy Jr. (1992)

Lex Leonum Fraternitas

  • Reinier Paul R. Yebra (2009)

Portia Sorority

  • Cecilia A. Munoz (1937)
  • Amuerfina A. Melencio (1947)
  • Maria Yvette O. Navarro (1988)

Scintilla Juris Fraternity

  • Rafael R. Lagos (1980)

Sigma Delta Phi Sorority

  • Ameurfina A. Melencio (1947)
  • Patricia Ann T. Prodigalidad (1996)

Sigma Rho Fraternity

  • Jovito R. Salonga (1944) – resigned
  • Pedro L. Yap ’39 (1946)
  • Manuel G. Montecillo ’39 (1948)
  • Manuel G. Abello ’54 GA ‘ 57 (1958)
  • Cosme D. Rosell ’75 (1978)

Theta Epsilon Sorority

  • Judy A. Lardizabal (2008)

Upsilon Sigma Phi

  • Ferdinand E. Marcos (1939)
  • Rodolfo A. Ponferrada (2001)
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Philippine Bar Exam: Law school passing rates

Posted on March 27, 2012. Filed under: 2012 Bar Review Materials, Bar Candidates Hub, Bar Exam Tips & Guide, Bar Matters, Students of Law | Tags: , , , , |

From Wikipedia, the free encyclopedia

 

Law schools with the highest bar passing rates from 1996 to 2005 include:

Schools with more than 30 examinees:

Schools with 30 or less examinees:

[16][17]

In 2009, the Commission on Higher Education revealed its list of top law schools based on average passing percentage, regardless of the number of candidates. The top 10 schools of that list are:

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Philippine Bar Exam: Passing Percentage (1978-2011)

Posted on March 27, 2012. Filed under: 2012 Bar Review Materials, Bar Candidates Hub, Bar Exam Tips & Guide, Bar Matters, Students of Law | Tags: , , , , , |

From Wikipedia, the free encyclopedia

Year

Passing Percentage

2011

31.95% (1,913 out of 5,987)

2010

20.26% (982 out of 4,847)

2009

24.58% (1,451 out of 5,903)

2008

20.58% (1,310 out of 6,364)

2007

22.91% (1,289 out of 5,626)

2006

30.60% (1,893 out of 6,187)

2005

27.22% (1,526 out of 5,607)

2004

31.61% (1,659 out of 5,249)

2003

20.71% (1,108 out of 5,349)

2002

19.68% (917 out of 4,659)

2001

32.89% (1,266 out of 3,849)

2000

20.84% (979 out of 4,698)

1999

16.59% (660 out of 3,978)

1998

39.63%

1997

18.11% (710 out of 3,921)

1996

31.21% (1,217 out of 3,900)

1995

30.90% (987 out of 3,194)

1994

30.87%

1993

21.65%

1992

17.25%

1991

17.81% (569 out of 3,194)

1990

27.94% (866 out of 3,100)

1989

21.22% (639 out of 3,012)

1988

24.26% (689 out of 2,840)

1987

16.95% (480 out of 2,832)

1986

18.88% (491 out of 2,600)

1985

25.78% (701 out of 2,719)

1984

21.80% (563 out of 2,582)

1983

21.30% (523 out of 2,455)

1982

20.50% (433 out of 2,112)

1981

43.71% (841 out of 1,924)

1980

33.61% (605 out of 1,800)

1979

49.51% (903 out of 1,824)

1978

56.93% (1,076 out of 1,890)

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Pointers in Contract of Sale > Mercantile Law

Posted on March 22, 2012. Filed under: 2012 Bar Review Materials, Bar Review Materials, Mercantile Law | Tags: , , , , |

I.  NATURE AND FORM OF THE CONTRACT

Sources of the Law on Sales

Sales are governed by the provisions of the Civil Code:

1. Book IV, Title VI, Articles 1458-1637 (Sales)

2. Title I, Arts. 1156-1422 (Obligations and Contracts)

3. Opinions of Commentators

4. Jurisprudence

Concept of Contract of Sale

The contract of sales is an agreement whereby one of the parties (called the seller or vendor) obligates himself to deliver something to the other (called the buyer or purchaser or vendee) who, on his part, hinds himself to pay therefore a sum of money or its equivalent (known as the price).

The transfer of title to property or the agreement to transfer title for a price paid or promised, not mere physical transfer of the property, is the essence of sale.

Characteristics of a Contract of Sale

1. Consensual - perfected by mere consent of the parties without further acts.
2. Bilateral - both the contracting parties are bound to fulfill correlative obligations towards each other (the seller to deliver and transfer ownership of the thing sold, and the buyer to pay the price).
3. Onerous - the thing sold is conveyed in consideration of the price and vice versa.
4. Commutative - the thing sold is considered the equivalent of the price paid and vice versa.
5. Aleatory - in the case of sale of hope, one of the parties or both reciprocally bind themselves to give or to do something in consideration of what the other shall give or do upon the happening of an event which is uncertain, or which is to occur at an indeterminate time.
6. Nominate - the contract is given a special name or designation in the Civil Code.
7. Principal - the contract does not depend for its existence and validity upon another contract.

Essential Requisites of a Contract of Sale

1.   Consent or meeting of the minds – refers to the conformity of the parties to the terms of the contract, the acceptance by one of the offer made by the other.  As a bilateral contract, the acceptance of payment by a party is an indication of his consent to a contract of sale, thereby precluding him from rejecting its binding effect [Clarin vs. Rulova, 127 SCRA 512]. 

  • There may be a sale against the will of the owner in case of expropriation and the three different kinds of sale under the law – ordinary execution sale, judicial foreclosure sale, and extra-judicial foreclosure sale.

2.  Object or subject matter – refers to the determinate thing which is the object of the contract;

  • Even a future thing not existing at the time the contract is entered into may be the object of sale, provided it has a potential or possible existence, that is, it is reasonably certain to come into existence as the natural increment or usual incident of something in existence already belonging to the seller, and the tile will vest the buyer the moment the thing comes into existence (Art. 1461).
Emptio rei speratae

(sale of thing expected)

Rei spetae
- the sale of a thing not yet in existence, subject to the condition that the thing will exist and on failure of the condition, the contract becomes ineffective and hence, the buyer has not obligation to pay the price; - the sale of hope itself that the thing will come into existence, where it is agreed that the buyer will pay the price even if the thing does not eventually exist;
- the future thing is certain as to itself but uncertain as to its quantity and quality; - like the sale of a sweepstake ticket, it is not certain that the thing itself (winning a prize) will exist, much less it quantity and quality;
- contract deals with a future thing; - contract relates to a thing which exists or is present – the hope or expectancy;
- sale is subject to the condition that the thing should exist, so that if it does not, there will be no contract by reason of the absence of an essential element. - produces effect even though the thing does not come into existence because the object of the contract is the hope itself, unless it is a vain hope or expectancy (like the sale of a falsified sweepstakes ticket which can never win).

 3.   Cause or consideration – refers to the price certain in money or its equivalent.

Natural Elements – those which are deemed to exist in certain contracts, in the absence of any contrary stipulations, like warranty against eviction;

Accidental Elements – those which may be present or absent depending on the stipulations of the parties, like conditions, interest, penalty, time or place of payment.

Kinds of a Contract of Sale

1.  As to presence or absence of conditions

Absolute – where the sale is not subject to any condition whatsoever and where the title passes to the buyer upon delivery of the thing sold.

Conditional – where the sale contemplates a contingency and where the contract is subject to certain conditions, usually in the case of the vendee, for the full payment of the agreed purchase price.

2.  Other kinds

As to the nature of the subject matter – real or personal, tangible or intangible

As to the manner of payment – cash or installment

As to its validity – valid, rescissible, unenforceable, void

Contract of Sale Distinguished from Contract to Sell 

Contract of Sale

Contract to Sell

Transfer of title:

- passes to the buyer upon delivery of the thing sold.

- remains with the seller until full payment of the agreed price.

Payment of price:

- non-payment of the price is a negative resolutory condition, and the remedy is to exact fulfillment or to rescind the contract.

- full payment is a positive suspensive condition, the failure of which is not a breach, casual or serious, of the contract but simply an event that prevents the obligation of the vendor to convey title from acquiring binding force.

Ownership of vendor:

- vendor loses and cannot recover ownership of the thing sold and delivered, actually or constructively until and unless the contract of sale itself is resolved and set aside.

- title remains in the vendor until full payment of price.

Sale Distinguished from Dation in Payment:

Sale

Dation in Payment

- no pre-existing credit - there is pre-existing credit
- gives rise to obligation - extinguishes obligation
- cause or consideration is the price, or the acquisition of title to the property - cause of consideration is extinguishment of the debt (from the point of view of the offeror), and the acquisition of the object offered (from the point of view of the creditor) in lieu of the original credit
- there is greater freedom in the determination of the price - less freedom
- giving of the price may generally end the obligation of the buyer - the giving of the object in lieu of the credit may extinguish completely or partially the credit (depending on the agreement)

Sale of goods by description

Sale of goods by sample

 -      occurs where the purchaser has not seen the article sold and relies on the description given him by the vendor, or has seen the goods but the want of identity is not apparent on inspection.-          If the bulk of the goods delivered  does not correspond with the description, the contract may be rescinded. (Art. 1481.)

- the parties contracted solely with reference to the sample, with the understanding that the bulk was like it.-  the vendor warrants that the thing sold and to be delivered by him shall conform with the sample in kind, charater, and quality.

Form of Contract of Sale

Generally, a contract may be entered into in any form provided all the essential requisites for its validity are present (Art. 1356).  It may be in writing, oral, or partly in writing and party oral.  It may even be inferred from the conduct of the parties, since sale is a consensual contract that is perfected by mere consent.

However, in case the contract of sale should be covered by the Statute of Frauds, the law requires that the agreement be in writing subscribed by the party charged, or by his agent; otherwise, the contract cannot be enforced by action [see Art. 1403].

  • Under the Statute of Frauds (Art. 1403 [2, a, d, e].) of the Civil Code, the following contracts must be in writing to be enforceable:

(a)    sale of personal property at a price not less than P500;

(b)    sale of real property or an interest therein regardless of the price involved; and

(c)    sale of property not to be performed within a year from the date thereof regardless of the nature of the property and the price involved.

  • The Statute Frauds specifies three (3) ways in which contracts of sales of goods within its terms may be made binding:

(a)    the giving of a memorandum;

(b)    acceptance and receipt of part of the goods (or things in action) sold and actual receipt of the same (Art. 1585); and

(c)    payment or acceptance at the time some part of the purchase price.

  • The Statute of Frauds is applicable only to executory contracts (where no performance, i.e., delivery and payment, has as yet been made by both parties), and not to contracts which are totally consummated or partially performed [Vda. De Espiritu vs. CFI of Cavite, 47 SCRA 354].

Recto Law (Art. 1484) – Remedies of Vendor in Sale of Personal Property Payable in Installments:

(a)    elect fulfillment upon the vendee’s failure to pay;

(b)    cancel the sale, if the vendee shall have failed to pay two or more installments;

(c)    foreclose the chattel mortgage, if one has been constituted, if the vendee shall have failed to pay two or more installments.

  • These remedies are alternative and are not to be exercised cumulatively or successively and the election of one is a waiver of the right to resort to the others [Pacific Commerial Co. vs De la RAma, 62 Phil. 380; Nonato vs. IAC, 140 SCRA 255].
  • In transactions involving the sale of financing of real estate on installment payments, including residential condominium apartments, the following are the rights given to the buyer who has paid at least two (2) years of installments in case he defaults in the payment of succeeding payments

(a)    to pay without additional interest the unpaid installments due within the total grace period earned by him fixed at the rate of one-month grace period for every one year of installment payments made – this right shall be exercised by him only once in every five (5) years of the life of the contract and its extension, if any; and

(b)   if the contract is cancelled, the seller shall refund to the buyer the cash surrender value of the payments on the property equivalent to 50% of the total payments made and, after 5 years of installments, an additional 5% of every year but not to exceed 90% of the total payments made. [Sec. 3, RA 6552 or the Realty Installment Buyer Protection Act; see Layug vs. IAC, 67 SCRA 627].

(c)    The buyer has the right to sell his right or assign the same before actual cancellation of the contract and to pay in advance any unpaid installment anytime without interest and to have such full payment of the purchase price annotated in the certificate of title covering the property. 

II.                CAPACITY TO BUY OR SELL 

Persons Who May Enter Into a Contract of Sale 

As a general rule, all persons, whether natural or juridical, who can bind themselves, have the legal capacity to buy and sell. 

Persons Who Are Incapacitated to Enter Into a Contract of Sale

1. Absolute Incapacity – pertains to persons who cannot bind themselves

(a)    Minor

(b)    Insane or demented persons

(c)    Deaf-mutes who do not know how to read and write

  • Contracts entered into by a minor and other incapacitated persons arevoidable.  However, where the necessaries are sold and delivered to him (without the intervention of the parent or guardian), he must pay a reasonable price therefor.  The contract is therefore valid, but the minor has the right to recover any excess above a reasonable value paid by him.
  • Sale of real property by minors who have already passed the ages of puberty and adolescence and are now in the adult age, when they pretended to have already reached their majority, while in fact they have not, is valid, and they cannot be permitted afterwards to excuse themselves from compliance with the obligations assumed by them or to seek their annulment.  This is in accord with the doctrine of estoppel[Mercado and Mercado vs. Espiritu, 37 Phil. 265].

 2. Relative Incapacity – where it exists only with reference to certain persons or class of property (Art. 1490-1491).  The prohibition extends to sales by virtue of legal redemption, compromises, and renunciations.

(a)    Husband and wife to each other – except when a separation of property was agreed upon in the marriage settlements, or when there has been a judicial separation of property

(b)    Guardian – as to the property of his ward

(c)    Agents – as to the property whose administration or sale has been entrusted to them, unless consent of the principal is given

(d)    Executors or administrators – as to the state under their administration

(e)    Public officers and employees – as to the property of the State or any subdivision thereof, or of the government-owned or controlled corporations, the administration of which is entrusted to them

(f)     Judges and government experts who take part in the sale of the property and rights under litigation

  • The prohibition is based on the fiduciary relationship (based on trust), to prevent fraud and undue and improper influence.
  • With respect to (b) to (d), the sale shall only be voidable because in such cases only private interests are affected.  The defect can be cured by ratification by the seller. With respect to (e) and (f), the sale shall be null and void, public interests being involved therein.

(g)    Aliens who are disqualified to purchase private agricultural lands under Art. XII, Secs. 3 and 7 of the Constitution

(h)   Unpaid seller having a right of lien or having estopped the goods in transitu

(i)      Officer holding the execution or his deputy 

III.             EFFECTS OF THE CONTRACT WHEN THE THING SOLD HAS BEEN LOST 

  • Where the thing is entirely lost at the time of perfection, the contract is inexistent and void because there is no object.  There being no contract, there is no necessity to bring an action for annulment.
  • Where the thing is only partially lost, the vendee may elect between withdrawing from the contract and demanding the remaining part, paying its proportionate price.
  • The thing is lost when it perishes or goes out of commerce or disappears in such a way that its existence is unknown or it cannot be recovered.

IV.              OBLIGATIONS OF THE VENDOR 

Principal Obligations of the Vendor 

to transfer the ownership of the determinate thing sold (Art. 1495);

  • The vendor need not be the owner of the thing at the time of perfection of the contract; it is sufficient that he has a right to transfer the ownership thereof at the time it is delivered (Art. 1459).
  • If the seller promised to deliver at a stipulated period and such period is of the essence of the contract but did not comply with his obligation on time, he has no right to demand payment of the price.  The vendee-buyer is fact may ask for the rescission or resolution of the sale.
  • If the failure of the seller to deliver on time is not due to his fault, as when it was the buyer who failed to supply the necessary credit for the transportation of the goods, delay on the part of the seller may be said to be sufficiently excused.

to deliver the thing, with its accessions and accessories, if any, in the condition in which they were upon the perfection of the contract (Art. 1537);

to warrant against eviction and against hidden defects (Arts. 1495, 1547);

to take care of the thing, pending delivery, with proper diligence (Art. 1163);

to pay for the expenses of the deed of sale, unless there is a stipulation to the contrary (Art. 1487).

Delivery or Tradition 

Tradition or delivery is a derivative mode of acquiring ownership by virtue of which one has the right and intention to alienate a corporeal thing, transmits it by virtue of a just title to one who accepts the same.

  • Duty to Deliver at Execution Sale: a judgment debtor is not obliged to deliver right away; he has one (1) year within which to redeem the property.

Kinds of Delivery or Tradition

  1.   Actual or Real (Art. 1497) – the thing sold is placed in the control and possession of the vendee or his agent.  This involves the physical delivery of the thing and is usually done by the passing of a movable thing from hand to hand.
  2.   Legal or Constructive (Arts. 1498-1501) – through the execution of a public instrument

Legal formalities – applies to real and personal properties, where the delivery is made through the execution of a public document;

Traditio simbolica – to effect delivery, the parties make use of a token symbol to represent the thing delivered;

Traditio longa manu – movable property is delivered by mere consent by the contracting parties if the thing sold cannot be transferred to the possession of the vendee at the time of the sale;

Traditio brevi manu – the vendee already has the possession of the thing sold by virtue of another title as when the lessor sells the thing leased to the lessee;

Constitotum possessorium – the vendor continues in possession of the property sold not as owner but in some other capacity (e.g., as tenant of the vendee).

        3.   Quasi-Traditio (Art. 1501) – delivery of rights, credits or incorporeal real property, made by placing the titles of ownership in the hands of the vendee or lawyer, by execution of a public instrument, or by allowing the vendee to use his rights as new owner with the consent of the vendor.

  • Requisites in constructive delivery before ownership may be transferred:

(a)    Seller must have control over the thing; otherwise, can he put another in control?

(b)    Buyer must be put under control;

(c)    There must be the intention to deliver the thing for purposes of ownership.

  • Rules of constructive delivery

1. If a seller has an actual possession, he cannot transfer ownership by constructive delivery.

2. There can be no constructive delivery by means of a public instrument if there is a stipulation to the contrary.

3. The execution of a deed or contract is only presumptive delivery.

An Unpaid Seller is one who has not been pair or rendered the whole price or who has received a bill of exchange or other negotiable instrument as conditional payment and the condition on which it was received has been broken by reason of the dishonor of the instrument.

Rights of an unpaid seller

1. A lien on the goods or right to retain them for the price while in his possession

2. A right of stopping the goods in transitu in case of insolvency of the buyer; requisites:

(a)    the seller must be unpaid;

(b)    the buyer must be insolvent;

(c)    the goods must be in transit;

(d)    the seller must either actually take possession of the goods sold or give notice of his claim to the carrier or other person in possession;

(e)    the seller must surrender the negotiable document of title, if any, issued by the carrier or bailee; and

(f)     the seller must bear the expenses of delivery of the goods after the exercise of the right.

3. A right of resale

4. A right to rescind the sale

Rules in case of loss, deterioration, or improvement of thing before delivery  

  1. If the thing is lost without the fault of the debtor, the obligation shall be extinguished.
  2. If the thing is lost through the fault of the debtor, he shall be obliged to pay damages, if is understood that the thing is lost when it perishes, or goes out of commerce, or disappears in such a way that its existence is unknown or it cannot be recovered.
  3. When the thing deteriorates without the fault of the debtor, the impairment is to be borne by the creditor.
  4. If it deteriorates through the fault of the debtor, the creditor may choose between the rescission of the obligation and its fulfillment, with indemnity for damages in either case.
  5. If the thing is improved by its nature, or by time, the improvement shall inure to the benefit of the creditor.
  6. If it is improved at the expense of the debtor, he shall have no other right than that granted to the usufructuary.

Rules as to preference of ownership in case of double sale  

  1. If the property sold is movable, the ownership shall be acquired by the vendee who first takes possession in good faith [Villa Rey Transit, Inc. vs Ferrer, 25 SCRA 861].
  2. If the property sold is immovable, the ownership shall belong to:

(a)    the vendee who first registers the sale in good faith in the Registry of Deeds has preferred right over another vendee who has not registered his title even if the latter is in actual possession of the immovable property – governed by the principle prius tempore, patior jure (first in time, stronger in right) – knowledge by the first buyer of the  second sale cannot defeat the first buyer’s right except when the second first registers in good faith the second sale;

(b)    in the absence of registration, the vendee who first takes possession in good faith; and

(c)    in the absence of both registration and possession, the vendee who presents the oldest title (who first bought the property) in good faith.

  • Article 1544 has no application to lands not registered with the Torrens system. 

V.    CONDITION AND WARRANTIES 

Condition means an uncertain event or contingency on the happening of which the obligation (or right) of the contract depends.

Warranty is a statement or representation made by the seller of goods, contemporaneously and as a part of the contract of sale, having reference to the character, quality, or title of the goods, and by which he promises or undertakes to insure that certain facts are or shall be as he then represents them.

If the obligation of either party is subject to any condition and such condition is not fulfilled, such party may either (1) refuse to proceed with the contract, or (2) proceed with the contract, waiving the performance of the condition.

If the condition is in the nature of a promise that it should happen, the non-performance of such condition may be treated by the other party as a breach of warranty.

Implied warranty as to seller’s title (Art. 1548) – that the seller guarantees that he has a right to sell the thing sold and to transfer ownership to the buyer who shall not be disturbed in his legal and peaceful possession thereof.

Implied warranty against hidden defects or unknown encumbrance (Art. 1562) – that the seller guarantees that the thing sold is reasonably fit for the known particular purpose for which it was acquired by the buyer or, where it was bought by description, that it is of merchantable quality.

Essential elements of warranty against eviction 

  1. the vendee is deprived in whole or in part of the thing purchased;
  2. the vendee is so deprived by virtue of a final judgment ;
  3. the judgment is based on a right prior to the sale or an act imputable to the vendor;
  4. the vendor was summoned in the suit for eviction at the instance of the vendee; and
  5. there is no waiver on the part of the vendee. 

Kinds of waiver of eviction 

  1. Consciente – the waiver is voluntarily made by the vendee without the knowledge and assumption of the risks of eviction. If the waiver was only conscious, the vendor shall pay only the value which the thing sold had at the time of eviction – this is a case of solution indebiti – the effect is to deprive the purchaser of the benefits mentioned in Nos. 2, 3, 4 and 5 of Article 1555.
  2. Intencionada – the waiver is made by the vendee with knowledge of the risks of eviction and assumption of its consequence. The vendor is exempted from the obligation to answer for eviction, provided he did not act in bad faith [Andaya vs. Manansala, 107 Phil. 1151].

Rights of the vendee against the vendor in case eviction occurs (Art. 1555) 

  1. return of the value of the thing sold at the time of eviction;
  2. income or fruits if he has been ordered to deliver them to the party who won the suit against him;
  3. costs of the suit;
  4. expenses of the contract;
  5. damages and interests and ornamental expenses if the sale was made in bad faith.
Redhibition Redhibitory action Redhibitory vice or defect

- the avoidance of a sale on account of some vice or defect in the thing sold, which renders its use impossible, or so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice.

- an action instituted to avoid a sale on account of some vice or defect in the thing sold which renders its use impossible, or so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it had he known of the vice. The object is the rescission of the contract. If the object is to procure the return of a part of the purchase price paid by the vendee, the remedy is known as accion minoris orestimatoris. - a defect in the article sold against which defect the seller is bound to warrant.  The vice or defect must constitute an imperfection, a defect in its nature, of certain importance; and a minor defect does not five rise to redhibition.  The mere absence of a certain quality in the thing sold which the vendee thought it to contain is not necessarily a redhibitory defect.  One thing is that is positively suffers from certain defects.

Doctrines of caveat venditor and caveat emptor

Caveat venditor

(Let the seller beware)

Caveat emptor

(Let the buyer beware)

- the vendor is liable to the vendee for any hidden faults or defects in the thing sold, even though he was not aware thereof (Art. 1566).-  Based on the principle that a sound price warrants a sound article. - applies in sheriff’s sale, sales of animals, and tax sales, for there is no warranty of title or quality on the part of the seller in such sales.

-  Also applies in double sales of property where the issue is who between two vendees has a better right to the property .

-  Requires the purchaser to be aware of the supposed title of the vendor and one who buys without checking the vendor’s title takes all the risks and losses consequent to such failure [Solvoso vs. Tanega, 87 SCRA 349].

Alternative remedies of the buyer to enforce warranty (Art. 1567):

  1. Accion redhibitoria – to withdraw from the contract
  2. Accion quanti minoris – demand a proportionate reduction of the price, with a right to damages in either case

Effect of loss of thing sold on account of hidden defects (Art. 1568) 

If the vendor was aware of the hidden defects in consequence of which the thing sold was lost, he shall bear the loss because he acted in bad faith. In such case, the vendee has the right to recover:

(a)    the expenses of the price paid

b)    the contract; and

(c)    damages.

If the vendor was not aware of them, he shall be obliged only to return:

(a)    the price paid

(b)    interest thereon; and

(c)    expenses of the contract if paid by the vendee.  He is not made liable for damages because he is not guilty of bad faith.

VI.   OBLIGATIONS OF THE VENDEE 

  • The vendee is obliged to (1) accept delivery; and (2) pay the price of the thing sold.
  • The following rules must be borne in mind:
1. In contract of sale, the vendor is not required to deliver the thing sold until the price is paid nor the vendee pay the price before the thing is delivered in the absence of an agreement to the contrary [La Font vs. Pascacio, 5 Phil. 591].
2. If stipulated, then the vendee is bound to accept delivery and to pay the price at the time and place designated.
3. If there is no stipulation as to the time and place of payment and delivery, the vendee is bound to pay at the time and place of delivery.
4. In the absence also of stipulation, as to the place of delivery, it shall be made wherever the thing might be at the moment the contract was perfected (Art. 1251).
5. If only the time for delivery of the thing sold has been fixed in the contract, the vendee is required to pay even before the thing is delivered to him; if only the time for payment of the price has been fixed, the vendee is entitled to delivery even before the price is paid by him (Art. 1524).

Instances when the vendee may suspend the payment of the price: 

a) should he be disturbed in the possession or ownership of the thing sold;

b) should he have reasonable grounds to fear such disturbance by a vindicatory action or by a foreclosure of mortgage;

These rights do not exist in the following cases: 

(a)    should there be a stipulation to that effect; or

(b)    should the vendor give security for the return of the price; or

(c)    should the vendor have caused the disturbance or danger to cease; or

(d)    should the disturbance consist only of a mere act or trespass.

VII.           ACTIONS FOR THE BREACH OF CONTRACT OF SALE OF GOODS 

Goods – include all chattels personal but not things in action or money of legal tender in the Philippines. The term includes growing fruits or crops.

Actions available for breach of the contract of sale of goods

Action by the seller for payment of the price (Art. 1595)

Action by the seller for damages for non-acceptance of the goods (Art. 1596)

Action by the seller for rescission of the contract for breach thereof (Art. 1597)

Action by the buyer for specific performance (Art. 1598)

Action by the buyer for rescission or damages for breach of warranty (Art. 1599) 

Remedies allowed to the buyer when the seller has been guilty of a breach of promise or warranty (Art. 1599): 

1 Recoupment - accept the goods and set up the seller’s breach to reduce or extinguish the price.The theory of recoupment is that the seller’s damages are cut down to an amount which will compensate him for the value of what he has given.
2 Set-off or Counterclaim for damages - accept the goods and maintain an action for damages for the breach of the warranty. Both sides of the contract are enforced in the same litigation.  The buyer (defendant) does not seek to avoid his obligation under the contract but seeks to enforce the seller’s (plaintiff’s) obligation and to deduct it from his liability for the price for breach of warranty.
3 Action for damages – refuse to accept the goods and maintain an action for damages for the breach of the warranty.
4 Rescission - rescind the contract of sale by returning or offering the return of the goods, and recover the price or any part thereof which has been paid. This remedy is not available in the following cases:

(a)    if the buyer accepted the goods knowing of the breach of warranty without protest;

(b)    if he fails to notify the seller within a reasonable time of his election to rescind; and

(c)    if he fails to return or offer to return the goods in substantially as good condition as they were in at  the time of the transfer of ownership to him.  But where the injury to the goods was caused by the very defect against which the seller warranted, the buyer may still rescind the sale.

VIII.        EXTINGUISHMENT OF SALE 

Classification of modes or causes of extinguishing the contract of sale: 

Common – those causes which are also the means of extinguishing all other contracts like payment, loss of the thing, condonation, etc. (Art. 1231).

Special – those causes which are recognized by the law on sales (those covered by Arts. 1484, 1532, 1539, 1540, 1542, 1556, 1560, 1567, and 1591).

Extra-special – conventional redemption and legal redemption.

Conventional Redemption

(Arts. 1601-1618)

Legal Redemption

(Arts. 1619-1623)

It is the right which the vendor reserves to himself, to reacquire the property sold provided her returns to the vendee the price of the sale, the expenses of the contract, any other legitimate payments made therefore and the necessary and useful expenses made on the thing sold, and fulfills other stipulations which may have been agreed upon. It is the right to be subrogated, upon the same terms and conditions stipulated in the contract, in the place of one who acquires a thing by purchase or dation in payment, or by any other transaction whereby ownership is transmitted by onerous title.  
Nature: 

(a)    it is purely contractual because it is a right created, not by mandate of the law, but by virtue of an express contract[Ordoñez vs. Villaroman, 78 Phil. 116];

(b)    it is an accidental stipulation and, therefore, its nullity cannot affect the sale of itself since the latter might be entered into without said stipulation [Alojado vs. Lim Siongco, 51 Phil. 339];

(c)    it is a real right when registered, because it binds third persons [Mortera vs. Martinez, 14 Phil. 541];

(d)    it is a resolutory condition because when exercised, the right of ownership acquired by the vendee is extinguished[Aquino vs. Deal, 63 Phil. 582];

(e)    it is potestative because it depends upon the will of the vendor;

(f)     it is a power or privilege, not an obligation, that the vendor has reserved for himself [Ocampo vs. Potenciano, CA 48 OG 2230];

(g)    it is reserved at the moment of the perfection of the contract for if the right to repurchase is agreed upon afterwards, there is only a promise to sell which produces different rights and effects and is governed by Art. 1479 [Diamante vs. CA, 206 SCRA 52];

(h)    the person entitled to exercise the right of redemption necessarily is theowner of the property sold and not any third party [Gallar vs. Husain, 20 SCRA 186];

(i)      it gives rise to reciprocal obligationthat of returning the price of sale and other expenses, on the part of the vendor, and that of delivering the property and executing a deed of sale therefore, on the part of the vendee [Pandaquilla vs. Gaza, 12 Phil. 663].

Nature:  (a)     identical with conventional redemption, except for the source of the right – conventional redemption arises from the voluntary agreement of the parties; legal redemption proceeds from law;

(b)     it is not predicated on proprietary right but on a bare statutory privilege to be exercised only by the person named in the statute – the statute does not make actual ownership at the time of sale or redemption a condition precedent, the right following the person and not the property[Magno vs. Viola and Sotto, 61 Phil. 80];

(c)     it is in the nature of a mere privilegecreated partly for reason of public policy and partly for the benefit and convenience of the redemptioner to afford him a way out of what might be a disagreeable or inconvenient association into which he has been thrust – it is intended to minimize co-ownership [Basa vs. Aguilar, 117 SCRA 128; Tan vs. CA, 172 SCRA 660].

 

Instances of Legal Redemption:

 

(a)    Under the Civil Code, those found in Arts. 1620-1622, 1634, and 1088;

 

(b)    Under special laws:

(1)    redemption by owner of real property sold for delinquent taxes – period is within 1 year from date of sale;

(2)    repurchase by homesteader of homestead sold under the Public Land Act – period is 5 years [Tupas vs. Damasco, 132 SCRA 593];

(3)    redemption by judgment debtor or redemptioner or real property sold on execution – period is 12 months;

(4)    redemption by mortgagor after mortgaged property has been judicially foreclosed and sold – period is 90 days but before confirmation of sale by the court (in all cases of extra-judicial foreclosure sale, the mortgagor may redeem the property within 1 year from the date of registration of the sale);

(5)    redemption by an agricultural lessee of landholding sold by the landowner – period is 180 days from notice in writing which shall be served by the vendee on all lessees affected by DAR upon the registration of the sale.

An equitable mortgage is one which lacks the proper formalities, form of words, or other requisites prescribed by law for a mortgage, but shows the intention of the parties to make the property subject of the contract as security for a debt and contains nothing impossible or contrary to law [Cachola vs. CA, 208 SCRA 496].

Dacion en pago is the transmission of the ownership of a thing by the debtor to the creditor as the accepted equivalent of the performance of an obligation.

Pacto de retro

Mortgage

Ownership is transferred but the ownership is subject to the condition that the seller might recover the ownership within a certain period of time. Ownership is not transferred but the property is merely subject to a charge or lien as security for the compliance of a principal obligation, usually a loan.
If the seller does not repurchase the property upon the very day named in the contract, he loses all interest thereon. The mortgagor does not lose his interest in the property if he fails to pay the debt at its maturity.
There is no obligation resting upon the purchaser to foreclose; neither does the vendor have any right to redeem the property after the maturity of the debt. It is the duty of the mortgagee to foreclose the mortgage if he wishes to secure a perfect title thereto, and after the maturity of the debt secured by the mortgage and before foreclosure, the mortgagor has a right to redeem [Basilio vs. Encarnacion, 5 Phil. 360].

Instances when conventional redemption is presumed to be an equitable mortgage:

  1. when the price of a sale with right to repurchase is unusually inadequate;
  2. when the vendor remains in possession as lessee or otherwise;
  3. when upon or after the expiration of the right to repurchase another instrument extending the period of redemption or granting a new period is executed;
  4. when the purchaser retains for himself a part of the purchase price;
  5. when the vendor binds himself to pay the taxes on the thing sold;
  6. in any other case where it may be fairly inferred the real intention of the parties is that the transaction shall secure the payment of a debt or the performance of any other obligation; and
  7. when there is a doubt as to whether the contract is a contract of sale with right or repurchase or an equitable mortgage.
Requisites before legal redemption can be exercised:
1 There must be a sale or assignment of credit.  The concept of sale must be understood in its restricted sense.  The right cannot be exercised if the transaction is exchange or donation.
2 There must be a pending litigation at the time of the assignment.  The complaint by the assignor must have been filed and answered by the creditor before the sale of the credit.
3 The debtor must pay the assignee (a) the price paid by him, (b) the judicial costs incurred by him, and (c) the interests on the price from the date of payment.
4 The right must be exercised by the debtor within 30 days from the date the assignee demands (judicially or extra-judicially) payment from him.

Redemption

Pre-emption

1 The sale to a third person has already been perfected The sale to a third person has not yet been perfected
2 Has a much broader scope Narrower in scope – may be exercised only where there is a prospective resale of a small piece of urban land originally bought by the prospective vendor merely for speculation
3 Directed against the third person who bought the property Directed against the prospective vendor who is about to resell the property
4 Effect is to extinguish a contract that has already been perfected or even consummated Effect is to prevent the birth or perfection of a contract

IX.   ASSIGNMENT OF CREDITS AND OTHER INCORPOREAL RIGHTS 

Assignment of credit – a contract by which the owner of a credit transfers to another his rights and actions against a third person in consideration of a price certain in money or its equivalent (Art. 1458).

Assignment of credit and other incorporeal rights are consensual, bilateral, onerous, and commutative or aleatory contracts.  The assignment involves no transfer of ownership but merely effects the transfer of rights which the assignor has at the time to the assignee [Casabuena vs. CA, 286 SCRA 594].

It may be done gratuitously, but if done onerously, it is really a sale.  Thus, the subject matter is the credit or right assigned; the consideration is the price paid for the credit or right; and the consent is the agreement of the parties to the assignment of the credit or right at the agreed price.

Renunciation – the abandonment of a right without a transfer to another.

Agency – involves representation, not transmission wherein the agent acts for the principal.

Substitution – the change of a new debtor for the previous debtor with the credit remaining in the same creditor.

Subrogation – the change in the person of the creditor with the credit being extinguished.

  Binding effects of assignment:
1 As between the parties, the assignment is valid although it appears only in a private document so long as the law does not require a specific form for its validity.
2 To affect third persons, the assignment must appear in a public instrument, and in case it involves real property, it is indispensable that it be recorded in the Registry of Deeds [Lopez vs. Alvarez, 9 Phil. 28].
3 The assignee merely steps into the shoes of the assignor, the former acquiring the credit subject to defenses (fraud, prescription, etc.) available to the debtor against the assignor.  The assignee is deemed subrogated to the rights as well as to the obligations of the seller.  He cannot acquire greater rights than those pertaining to the assignor. [Koa vs CA, 219 SCRA 541].

 X.   BARTER OR EXCHANGE 

Barter – a contract whereby one person transfers the ownership of non-fungible things to another with the obligation on the part of the latter to give things of the same kind, quantity, and quality.

The contract is perfected from the moment there is a meeting of the minds upon the things promised by each party in consideration of the other.  It is consummated from the time of mutual delivery by the contracting parties of things they promised.

Effect where the giver is not the lawful owner of the thing delivered:  the aggrieved party cannot be compelled to deliver the thing he has promised.  He is entitled to claim damages (Art. 1639). [Biagtan vs. Viuda de Oller, 62 Phil. 933].

Remedy in case of eviction: the injured party is given the option to recover the property he has given in exchange with damages or only claim an indemnity for damages.  The right to recover is, however, subject to the rights of innocent third persons (Art. 1640).

XI.    THE BULK SALES LAW

Purpose of the law (Act No. 3952) is to prevent the defrauding of creditors by the secret sale or disposal or mortgage in bulk of all or substantially all of a merchant’s stock of goods.

The general scheme is to declare such bulk sales fraudulent and void as to creditors of the vendor, or presumptively so, unless specified formalities are observed, such as the demanding and the giving of a list of creditors, the giving of actual and constructive notice to such creditors, by record or otherwise, and the making of an inventory.

A sale and transfer in bulk under the Bulk Sales Law is any sale, transfer, mortgage, or assignment –

(a)    of a stock of goods, wares, merchandise, provisions, or materials otherwise than in the ordinary course of trade and the regular prosecution of the business; or

(b)  of all or substantially all, of the business or trade; or

(c)  of all or substantially all, of the fixtures and equipment used in the business of the vendor, mortgagor transferor, or assignor.

 Acts punished by the law: 

  1. knowingly or willfully making or delivering a statement as required by the Act which does not include the names of all the creditors of the vendor, etc. with the correct amount due and to become due or which contains any false or untrue statement; and
  2. transferring title to a any stock of goods, wares, merchandise, provisions or materials sold in bulk without consideration of for a nominal consideration only.

 - – O – -

 Reference:

  1. De Leon, Comments and Cases on Sales;
  2. Paras, Civil Code of the Philippines Annotated, Book V;
  3. Jurado, Civil Law Reviewer.
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2012 Remedial Law Reviewer (Summons to Entry of Judgments)

Posted on March 16, 2012. Filed under: Bar Review Materials, Remedial Law | Tags: , , , , |

I. SUMMONS (Rule 14)

(1)     Summons is a writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance therein.

(2)     The service of summons enables the court to acquire jurisdiction over the person of the defendant. If there is no service of summons, any judgment rendered or proceedings had in a case are null and void, except in case of voluntary appearance(Echevarria vs. Parsons Hardware, 51 Phil. 980). The law requiring the manner of service of summons in jurisdictional (Toyota Cubao vs. CA, GR 126321, Oct. 23, 1997).

 

Nature and purpose of summons in relation to actions in personamin remand quasi in rem

(1)     In an action in personam, the purpose of summons is not only to notify the defendant of the action against him but also to acquire jurisdiction over his person(Umandap vs. Sabio, Jr., 339 SCRA 243). The filing of the complaint does not enable the courts to acquire jurisdiction over the person of the defendant. By the filing of the complaint and the payment of the required filing and docket fees, the court acquires jurisdiction only over the person of the plaintiff, not over the person of the defendant. Acquisition of jurisdiction over the latter is accomplished by a valid service of summons upon him. Service of summons logically follows the filing of the complaint. Note further that the filing of the complaint tolls the running of the prescriptive period of the cause of action in accordance with Article 1155 of the Civil Code.

(2)     In an action in rem or quasi in rem, jurisdiction over the defendant is not required and the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res. The purpose of summons in these actions is not the acquisition of jurisdiction over the defendant but mainly to satisfy the constitutional requirement of due process (Gomez vs. CA, 420 SCRA 98).

 

Voluntary appearance

(1)     Voluntary appearance is any appearance of the defendant in court, provided he does not raise the question of lack of jurisdiction of the court (Flores vs. Zurbito, 37 Phil. 746; Carballo vs. Encarnacion, 92 Phil. 974). It is equivalent to service of summons (Sec. 20).

(2)     An appearance is whatever form, without explicitly objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person. It may be made by simply filing a formal motion, or plea or answer. If his motion is for any other purpose than to object to the jurisdiction of the court over his person, he thereby submits himself to the jurisdiction of the court (Busuego vs. CA, L-48955, June 30, 1987; La Naval Drug Corp. vs. CA, 54 SCAD 917).

(3)     Voluntary appearance may be in form of:

(a)     Voluntary appearance of attorney;

(b)     A motion, by answer, or simple manifestation (Flores vs. Surbito);

(c)     A telegraphic motion for postponement (Punzalan vs. Papica, Feb. 29, 1960);

(d)     Filing a motion for dissolution of attachment;

(e)     Failure to question the invalid service of summons (Navale vs. CA, GR 109957, Feb. 20, 1996);

(f)      Filing a motion for extension of time to file an answer.

 

Personal service

(1)     It shall be served by handling a copy to the defendant in person, or if he refuses it, by tendering it to him (Sec. 6, Rule 14).

 

Substituted service

(1)     If the defendant cannot be served within a reasonable time, service may be effected:

(a)     By leaving copies of the summons at the defendant’s dwelling house or residence with some person of suitable age and discretion then residing therein; or

(b)     By leaving copies at defendant’s office or regular place of business with some competent person in charge thereof (Sec. 7).

(2)     It may be resorted to if there are justifiable causes, where the defendant cannot be served within a reasonable time (Sec. 7). An example is when the defendant is in hiding and resorted to it intentionally to avoid service of summons, or when the defendant refuses without justifiable reason to receive the summons (Navale vs. CA, 253 SCRA 705).

(3)     In substituted service of summons, actual receipt of the summons by the defendant through the person served must be shown (Millennium Industrial Commercial Corp. vs. Tan, 383 Phil. 468). It further requires that where there is substituted service, there should be a report indicating that the person who received the summons in defendant’s behalf was one with whom petitioner had a relation of confidence ensuring that the latter would receive or would be notified of the summons issued in his name (Ang Ping vs. CA, 369 Phil. 609; Casimina vs. Hon. Legaspi, GR 147530, June 29, 2005).

(4)     Substituted service is not allowed in service of summons on domestic corporations (Delta Motor Sales Corp. vs. Mangosing, 70 SCRA 598).

 

Constructive service (by publication)

(1)     As a rule, summons by publication is available only in actions in rem or quasi in rem. It is not available as a means of acquiring jurisdiction over the person of the defendant in an action in personam.

(2)     Against a resident, the recognized mode of service is service in person on the defendant under Sec. 6 Rule 14. In a case where the defendant cannot be served within a reasonable time, substituted service will apply (Sec. 7, Rule 14), but no summons by publication which is permissible however, under the conditions set forth in Sec. 14, Rule 14.

(3)     Against a non-resident, jurisdiction is acquired over the defendant by service upon his person while said defendant is within the Philippines. As once held, when the defendant is a nonresident, personal service of summons in the state is essential to the acquisition of jurisdiction over him (Banco Do Brasil, supra). This is in fact the only way of acquiring jurisdiction over his person if he does not voluntarily appear in the action. Summons by publication against a nonresident in an action in personam is not a proper mode of service.

(4)     Publication is notice to the whole world that the proceeding has for its object to bar indefinitely all who might be minded to make an objection of any sort against the right sought to be established. It is the publication of such notice that brings the whole world as a party in the case and vests the court with jurisdiction to hear and decide it(Alaban vs. CA, GR 156021, Sept. 23, 2005).

 

Service upon a defendant where his identity is unknown or where his whereabouts are unknown

(1)     Where the defendant is designated as unknown, or whenever his whereabouts are unknown and cannot be ascertained despite a diligent inquiry, service may, with prior leave of court, be effected upon the defendant, by publication in a newspaper of general circulation. The place and the frequency of the publication is a matter for the court to determine (Sec. 14, Rule                14). The rule does not distinguish whether the action is in personamin rem or quasi in rem. The tenor of the rule authorizes summons by publication whatever the action may be as long as the identity of the defendant is unknown or his whereabouts are unknown. Under the previous rulings, jurisdiction over the defendant in an action in personam cannot be acquired by the summons by publication (Pantaleon vs. Asuncion, 105 Phil. 761; Consolidated Plyware Industries vs. Breva, 166 SCRA 516).

 

Rules on Summons on Defendant

(1)     Resident

(a)     Present in the Philippines

  1. Personal service (Rule 14, Sec. 6)
  2. Substituted service (Rule 14, Sec. 7)
  3. Publication, but only if
    1. his identity or whereabouts is unknown (Rule 14, Sec. 14); and
    2. the action is in rem or quasi in rem (Citizen Surety v. Melencio-Herrera38 SCRA 369 [1971]).

(b)     Absent from the Philippines

  1. Substituted service (Rule 14, Sec. 7)
  2. Extraterritorial service (Rule 14, Sec. 16 and 15); action need not be in remor quasi in rem (Valmonte v. CA, 252 SCRA 92 [1996])

(2)     Non-resident

  1. Present in the Philippines
    1. Personal service (Sec. 6, Rule 14)
    2. Substituted service (Sec. 7, Rule 14)
    3. Absent from the Philippines
      1. Action in rem or quasi in rem – only Extraterritorial service (Rule 14, Sec. 15)
      2. Action in personam, and judgment cannot be secured by attachment (e.g. action for injunction)
      3. Wait for the defendant to come to the Philippines and to serve summons then
      4. Bait the defendant to voluntarily appear in court (Rule 14, Sec. 20)
      5. Plaintiff cannot resort to extraterritorial service of summons (Kawasaki Port Services vs. Amores199 SCRA 230 [1991]; Dial Corporation vs. Soriano, 161 SCRA 737 [1988]).

 

Service upon residents temporarily outside the Philippines

(1)     Service of summons upon a resident of the Philippines who is temporarily out of the country, may, by leave of court be effected out of the Philippines as under the rules on extraterritorial service in Sec. 15, Rule 14 by any of the following modes: (a) by personal service as in Sec. 6, (b) by publication in a news paper of general circulation together with a registered mailing of a copy of the summons and the order of the court to the last known address of the defendant, or (c) by any manner the court may deem sufficient under Sec. 16. Like in the case of an unknown defendant or one whose whereabouts are unknown, the rule affecting residents who are temporarily out of the Philippines applies in any action. Note also, that summons by publication may be effected against the defendant.

(2)     The defendant may however, also be served by substituted service (Montalban vs. Maximo, 22 SCRA 1070). This is because even if he is abroad, he has a residence in the Philippines or a place of business and surely, because of his absence, he cannot be served in person within a reasonable time.

 

Extra-territorial service, when allowed

(1)     Under Sec. 15, Rule 14, extraterritorial service of summons is proper only in four (4) instances namely:

(a)     When the action affects the personal status of the plaintiffs;

(b)     When the action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent;

(c)     When the relief demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located in the Philippines; and

(d)     When the defendant non-resident’s property has been attached within the Philippines.

(2)     Extraterritorial service of summons applies when the following requisites concur:

(a)     The defendant is nonresident;

(b)     He is not found in the Philippines; and

(c)     The action against him is either in rem or quasi in rem.

(3)     If the action is in personam, this mode of service will not be available. There is no extraterritorial service of summons in an action in personam. Hence, extraterritorial service upon a nonresident in an action for injunction which is in personam is not proper (Kawasaki Port Service Corp. vs. Amores, 199 SCRA 230; Banco Do Brasil vs. CA, 333 SCRA 545).

 

Service upon prisoners and minors

(1)     On a minor. Service shall be made on him personally and on his legal guardian if he has one, or if none, upon his guardian ad litem whose appointment shall be applied for by the plaintiff, or upon a person exercising parental authority over him, but the court may order that service made on a minor of 15 or more years of age shall be sufficient (Sec. 10);

(2)     On prisoners. It shall be made upon him by serving on the officer having the management of the jail or institution who is deemed deputized as a special sheriff for said purpose (Sec. 9).

 

Proof of service

(1)     When the service has been completed, the server shall, within five (5) days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiff’s counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service (Sec. 4, Rule 14).

(2)     After the completion of the service, a proof of service is required to be filed by the server of the summons. The proof of service of summons shall be made in writing by the server and shall set forth the manner, place and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his deputy (Sec. 18).

 

II.    MOTIONS (Rule 15)

 

Definition of Motion

(1)     A motion is an application for relief other than by a pleading (Sec. 1, Rule 15).

Motions versus Pleadings

(1)     A pleading is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate judgment (Sec. 1, Rule 6). It may be in the form of a complaint, counterclaim, cross-claim, third-party complaint, or complaint-in-intervention, answer or reply (Sec. 2, Rule 6).

(2)     A motion on the other hand is an application for relief other than a pleading(Sec. 1, Rule 15).

Contents and form of motions

(1)     A motion shall state the order sought to be obtained, and the grounds which it is based, and if necessary shall be accompanied by supporting affidavits and other papers (Sec. 3).

(2)     All motions must be in writing except those made in open court or in the course of a hearing or trial (Sec. 2).

Omnibus Motion Rule

(1)     The rule is a procedural principle which requires that every motion that attacks a pleading, judgment, order or proceeding shall include all grounds then available, and all objections not so included shall be deemed waived (Sec. 8). Since the rule is subject to the provisions of Sec. 1, Rule 9, the objections mentioned therein are not deemed waived even if not included in the motion. These objections are: (a) that the court has no jurisdiction over the subject matter, (b) that there is another action pending between the same parties for the same cause (litis pendencia), (c) that the action is barred by a prior judgment (res judicata), and (d) that the action is barred by the statute of limitations (prescription) (Sec. 1, par. 2, Rule 9).

(2)     A motion to dismiss is a typical example of a motion subject to omnibus motion rule, since a motion to dismiss attacks a complaint which is a pleading. Following the omnibus motion rule, if a motion to dismiss is filed, then the motion must invoke all objections which are available at the time of the filing of said motion. If the objection which is available at the time is not included in the motion, that ground is deemed waived. It can no longer be invoked as affirmative defense in the answer which the movant may file following the denial of his motion to dismiss.

 

Litigated and ex parte motions

(1)     A litigated motion is one which requires the parties to be heard before a ruling on the motion is made by the court. Sec. 4 establishes the general rule that every written motion is deemed a litigated motion. A motion to dismiss (Rule 16), a motion for judgment for the pleadings (Rule 34), and a summary judgment (Rule 35), are litigated motions.

(2)     An ex parte motion is one which does not require that the parties be heard, and which the court may act upon without prejudicing the rights of the other party. This kind of motion is not covered by the hearing requirement of the Rules (Sec. 2). An example of an ex parte motion is that one filed by the plaintiff pursuant to Sec. 1, Rule 18, in which he moves promptly that the case be set for pre-trial.  A motion for extension of time is an ex parte motion made to the court in behalf of one or the other of the parties to the action, in the absence and usually without the knowledge of the other party or parties. Ex parte motions are frequently permissible in procedural matters, and also in situations and under circumstances of emergency; and an exception to the rule requiring notice is sometimes made where notice or the resulting delay might tend to defeat the objective of the motion (Sarmiento vs. Zaratan, GR 167471, Feb. 5, 2007).

 

Pro-forma motions

(1)     The Court has consistently held that a motion which does not meet the requirements of Sections 4 and 5 of Rule 15 on hearing and notice of the hearing is a mere scrap of paper, which the clerk of court has no right to receive and the trial court has no authority to act upon. Service of a copy of a motion containing a notice of the time and the place of hearing of that motion is a mandatory requirement, and the failure of movants to comply with these requirements renders their motions fatally defective (Vette Industrial Sales vs. Cheng, GR 170232-170301, Dec. 5, 2006).

(2)     A pro forma motion is one which does not satisfy the requirements of the rules and one which will be treated as a motion intended to delay the proceedings (Marikina Development Corporatoin vs. Flojo, 251 SCRA 87).

 

Motions for Bill of Particulars (Rule 12)

 

Purpose and when applied for

(1)     A party’s right to move for a bill of particulars in accordance with Sec. 1, Rule 12 (doesn’t include matters evidentiary in nature, which are covered by Modes of Discovery) when the allegations of the complaint are vague and uncertain is intended to afford a party not only a chance to properly prepare a responsive pleading but also an opportunity to prepare an intelligent answer. This is to avert the danger where the opposing party will find difficulty in squarely meeting the issues raised against him and plead the corresponding defenses which if not timely raised in the answer will be deemed waived. The proper preparation of an intelligent answer requires information as to the precise nature, character, scope and extent of the cause of action in order that the pleader may be able to squarely meet the issues raised, thereby circumscribing them within determined confines and preventing surprises during the trial, and in order that he may set forth his defenses which may not be so readily availed of if the allegations controverted are vague, indefinite, uncertain or are mere general conclusions. The latter task assumes significance because defenses not pleaded (save those excepted in Sec. 2, Rule 9, and whenever appropriate, the defenses of prescription) in a motion to dismiss or in the answer are deemed waived(Republic vs. Sandiganbayan, GR 115748, Aug. 7, 1996).

(2)     The purpose of the motion is to seek an order from the court directing the pleader to submit a bill of particulars which avers matters with ‘sufficient definitiveness or particularity’ to enable the movant to prepare his responsive pleading (Sec. 1, Rule 12), not to enable the movant to prepare for trial. The latter purpose is the ultimate objective of the discovery procedures from Rules 23 to 29 and ever of a pre-trial under Rule 18. In other words, the function of a bill of particulars is to clarify the allegations in the pleading so an adverse party may be informed with certainty of the exact character of a cause of action or a defense. Without the clarifications sought by the motion, the movant may be deprived of the opportunity to submit an intelligent responsive pleading.

(3)     A motion for a bill of particulars is to be filed before, not after responding to a pleading (Sec. 1, Rule 12). The period to file a motion refers to the period for filing the responsive pleading in Rule 11. Thus, where the motion for bill of particulars is directed to a complaint, the motion should be filed within fifteen (15) days after service of summons. If the motion is directed to a counterclaim, then the same must be filed within ten (10) days from service of the counterclaim which is the period provided for by Sec. 4, Rule 11 to answer a counterclaim.

(4)     In case of a reply to which no responsive pleading is provided for by the Rules, the motion for bill of particulars must be filed within ten (10) days of the service of said reply (Sec. 1, Rule 12).

 

Actions of the court

(1)     Upon receipt of the motion which the clerk of court must immediately bring to the attention of the court, the latter has three possible options, namely: (a) to deny the motion outright, (b) to grant the motion outright or (c) to hold a hearing on the motion.

 

Compliance with the order and effect of non-compliance

(1)     If a motion for bill of particulars is granted, the court shall order the pleader to submit a bill of particulars to the pleading to which the motion is directed. The compliance shall be effected within ten (10) days from notice of the order, or within the period fixed by the court (Sec. 3, Rule 12).

(2)     In complying with the order, the pleader may file the bill of particulars either in a separate pleading or in the form or an amended pleading (Sec. 3, Rule 12). The bill of particulars submitted becomes part of the pleading for which it is intended (Sec. 6, Rule 12).

(3)     If the order to file a bill of particulars is not obeyed, or in case of insufficient compliance therewith, the court may order (a) the striking out of the pleading (b) or the portions thereof to which the order was directed (c) or make such other order as it deems just (Sec. 4).

 

Effect on the period to file a responsive pleading

(1)     A motion for bill of particulars is not a pleading hence, not a responsive pleading. Whether or not his motion is granted, the movant may file his responsive pleading. When he files a motion for BOP, the period to file the responsive pleading is stayed or interrupted. After service of the bill of particulars upon him or after notice of the denial of his motion, he may file his responsive pleading within the period to which he is entitled to at the time the motion for bill of particulars is filed. If he has still eleven (11) days to file his pleading at the time the motion for BOP is filed, then he has the same number of days to file his responsive pleading from the service upon him of the BOP. If the motion is denied, then he has the same number of days within which to file his pleading counted from his receipt of the notice of the order denying his motion. If the movant has less than five (5) days to file his responsive pleading after service of the bill of particulars or after notice of the denial of his motion, he nevertheless has five (5) days within which to file his responsive pleading.(Sec.5, Rule 12).

(2)     A seasonable motion for a bill of particulars interrupts the period within which to answer. After service of the bill of particulars or of a more definite pleading, of after notice of denial of his motion, the moving party shall have the same time to serve his responsive pleading, if any is permitted by the rules, as that to which he was entitled at the time of serving his motion, but no less than five (5) days in any event (Tan vs. Sandigabayan, GR 84195, Dec. 11, 1989; Sec. 5).

 

Motion to Dismiss (Rule 16)

(1)     A motion to dismiss is not a pleading. It is merely a motion. It is an application for relief other than by a pleading (Sec. 1, Rule 15). The pleadings allowed under the Rules are: (a) complaint, (b) answer, (c) counterclaim, (d) cross-claim, (e) third (fourth, etc.) –party complaint, (f) complaint in intervention (Sec. 2, Rule 6), and reply(Sec. 10, Rule 6). A motion is not one of those specifically designated as a pleading.

Grounds

(1)     Under Sec. 1, Rule 16, a motion to dismiss may be filed on any of the following grounds:

(a)     The court has no jurisdiction over the person of the defending party;

(b)     The court has no jurisdiction over the subject matter of the claim;

(c)     The venue is improperly laid;

(d)     The plaintiff has no legal capacity to sue;

(e)     There is another action pending between the same parties and for the same cause (lis pendens);

(f)      The cause of action is barred by a prior judgment (res judicata) or by the statute of limitations (prescription);

(g)     The pleading asserting the claim states no cause of action;

(h)     The claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;

(i)       The claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and

(j)       A condition precedent for filing the action has not been complied with.

(2)     The language of the rule, particularly on the relation of the words “abandoned” and “otherwise extinguished” to the phrase “claim or demand deemed set forth in the plaintiff’s pleading” is broad enough to include within its ambit the defense of bar by laches. However, when a party moves for the dismissal of the complaint based on laches, the trial court must set a hearing on the motion where the parties shall submit not only their arguments on the questions of law but also their evidence on the questions of fact involved. Thus, being factual in nature, the elements of laches must be proved or disproved through the presentation of evidence by the parties (Pineda vs. Heirs of Eliseo Guevara, GR 143188, Feb. 14, 2007).

 

Resolution of motion

(1)     After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading. The court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly the reasons therefor (Sec. 3).

(2)     Options of the court after hearing – but not to defer the resolution of the motion for the reason that the ground relied upon is not indubitable:

(1)     dismiss the action or claim;

(2)     deny the motion to dismiss; or

(3)     order amendment of the pleading.

 

Remedies of plaintiff when the complaint is dismissed

(1)     If the motion is granted, the complaint is dismissed. Since the dismissal is final and not interlocutory in character, the defendant has several options:

(a)     Refile the complaint, depending upon the ground for the dismissal of the action. For instance, if the ground for dismissal was anchored on improper venue, the defendant may file the action in the proper venue.

(b)     Appeal from the order of dismissal where the ground relied upon is one which bars the refiling of the complaint like res judicata, prescription, extinguishment of the obligation or violation of the statute of frauds (Sec. 5, Rule 16). Since the complaint cannot be refiled, the dismissal is with prejudice. Under Sec. 1[h], Rule 41, it is an order dismissing an action without prejudice which cannot be appealed from. Conversely, where the dismissal is with prejudice, an appeal from the order of dismissal is not precluded. However, where the ground for dismissal for instance, is the failure of the complaint to state cause of action, the plaintiff may simply file the complaint anew; but since the dismissal is without prejudice to its refilling, the order of dismissal cannot be appealed from under the terms of Sec. 1[h], Rule 41.

(c)     Petition for certiorari is availed of if the court gravely abuses its discretion in a manner amounting to lack of jurisdiction and is the appropriate remedy in those instances when the dismissal is without prejudice (Sec. 1, Rule 41).

 

Remedies of the defendant when the motion is denied

(1)     File answer within the balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his motion, but not less than five (5) days in any event (Sec. 4, Rule 16). As a rule, the filing of an answer, going through the usual trial process, and the filing of a timely appeal from an adverse judgment are the proper remedies against a denial of a motion to dismiss. The filing of an appeal from an order denying a motion to dismiss is not the remedy prescribed by existing rules. The order of denial, being interlocutory is not appealable by express provision of Sec 1[c], Rule 41.

(2)     Civil action under Rule 65. This remedy however is predicated upon an allegation and a showing that the denial of the motion was tainted with grave abuse of discretion amounting to lack of jurisdiction. Without such showing, Rule 65 cannot be availed of as a remedy.

(3)     The general rule is that the denial of a motion to dismiss cannot be questioned in a special civil action for certiorari which is a remedy designed to correct errors of jurisdiction and not errors of judgment. Neither can a denial of a motion to dismiss be the subject of an appeal unless and until a final judgment or order is rendered. In order to justify the grant of the extraordinary remedy of certiorari, the denial of the motion to dismiss must have been tainted with grave abuse of discretion amounting to lack or excess of jurisdiction (Douglas Lu Ym vs. Gertrudes Nabua, Gr 161309, Feb. 23, 2005).

(4)     File an appeal, because by the clear language of Sec. 5, the dismissal is subject to the right of appeal. This remedy is appropriate in the instances where the defendant is barred from refiling the same action of claim if the dismissal is based on the following grounds:

(a)     The cause of action is barred by a prior judgment

(b)     The cause of action is barred by the statute of limitations

(c)     The claim or demand has been paid, waived, abandoned or otherwise extinguished

(d)     The claim on which the action is founded is unenforceable under the provisions of the statute of frauds.

(5)     The denial of a motion to dismiss is interlocutory, hence, the remedy is to file an answer, proceed to trial, and await judgment before interposing an appeal. The denial should be raised as an error of the trial court on appeal. Certiorari is not the proper remedy. A writ of certiorari is not intended to correct every controversial interlocutory ruling: It is resorted to only to correct a grave abuse of discretion or a whimsical exercise of judgment equivalent to lack of jurisdiction. Its function is limited to keeping an inferior court within its jurisdiction and to relieve persons from arbitrary acts, acts which courts or judges have no power or authority in law to perform. It is not designed to correct erroneous findings and conclusions made by the courts(Bonifacio Construction Management Corp. vs. Hon. Estela Bernabe, GR 148174, June 30, 2005).

 

Effect of dismissal of complaint on certain grounds

(1)     Failure to state cause of action – defendant hypothetically admits all the averments thereof. The test of sufficiency of the facts found in a complaint as constituting a cause of action is whether or not admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer thereof. The hypothetical admission extends to the relevant and material facts well pleaded in the complaint and inferences fairly deducible therefrom. Hence, if the allegations in the complaint can be maintained, the same should not be dismissed regardless of the defense that may be assessed by the defendant (Davao Light and Power Co. vs.Hon. Judge, Davao City RTC, GR 147058, March 10, 2005).

(2)     When the complaint is dismissed on the grounds of prior judgment or by the statute of limitations, or payment, waiver, abandonment or extinguishment of the claim or unenforceability of the cause of action under the statute of frauds, the dismissal shall bar the refiling of the same action or claim, but this is without prejudice to the right of the other party to appeal from the order of dismissal because such dismissal is a final order, not merely interlocutory (Sec. 5).

 

When grounds pleaded as affirmative defenses

(1)     If no motion to dismiss has been filed, any of the grounds provided for dismissal may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss has been filed (Sec. 6, Rule 16).

(2)     Implied under Sec. 6, Rule 16 is that the grounds for a motion to dismiss are not waived even if the defendant fails to file a motion to dismiss because he may still avail of the defenses under Rule 16 as affirmative defenses in his answer.

(3)     The preliminary hearing authorized on the affirmative defenses raised in the answer, applies only if no motion to dismiss has been filed. As a rule, a preliminary hearing is not authorized when a motion to dismiss has been filed. An exception previously carved out as if the trial court had not categorically resolved the motion to dismiss. Another exception would be justified under the liberal construction rule as when it is evident that the action is barred by res judicata. A strict application of Sec. 6 would accordingly lead to absurdity when an obviously barred complaint continues to be litigated. The denial of a motion to dismiss does not preclude any future reliance on the grounds relied thereupon (Sps. Rasdas vs. Sps. Villa, GR 157605, Dec. 13, 2005).

 

Bar by dismissal

(1)     Res judicata as a ground for dismissal is based on two grounds, namely: (a) public policy and necessity, which makes it to the interest of the State that there should be an end to litigation (republicae ut sit litium); and (b) the hardship on the individual of being vexed twice for the same cause (nemo debet bis vexari et eadem causa). Accordingly, courts will simply refuse to reopen what has been decided. They will not allow the same parties or their privies to litigate anew a question once it has been considered and decided with finality. Litigations must end and terminate sometime and somewhere. The effective and efficient administration of justice requires that once a judgment has become final, the prevailing party should not be deprived of the fruits of the verdict by subsequent suits on the same issues filed by the same parties (Fells, Inc. vs. Prov. of Batangas, GR 168557, Feb. 19, 2007).

(2)     Res judicata comprehends two distinct concepts: (a) bar by a former judgment, and (b) conclusiveness of judgment (Heirs of Wenceslao Tabia vs.CA, GR 129377 & 129399, Feb. 22, 2007). The first concept bars the prosecution of a second action upon the same claim, demand or cause of action. The second concept states that a fact or question which was in issue in a former suit and was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein as far as the parties to that action and persons in privity with them are concerned and cannot be again litigated in any future action between such parties or their privies, in the same court or any other court of concurrent jurisdiction on either the same or different cause of action, while the judgment remains unreversed by proper authority (Moraga vs. Spouses Somo, GR 166781, Sept. 5, 2006).

(3)     Grounds for dismissal that bar refiling

(a)     cause of action is barred by a prior judgment;

(b)     cause of action is barred by the statute of limitations;

(c)     claim or demand set forth in the plaintiff’s pleading has been paid, waived, abandoned, or otherwise extinguished;

(d)     claim is unenforceable under the statute of frauds.

 

Distinguished from Demurrer to Evidence (Rule 33)

(1)     Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his case on the ground of insufficiency of evidence. It may be filed after the plaintiff has completed the presentation of his evidence. It is an aid or instrument for the expeditious termination of an action similar to a motion to dismiss, which the court or tribunal may either grant or deny.

(2)     Distinctions:

(a)     A motion to dismiss is usually filed before the service and filing of the answer; a demurrer to evidence is made after the plaintiff rests his case;

(b)     A motion to dismiss is anchored on many grounds; a demurrer is anchored on one ground—plaintiff has no right to relief; and

(c)     If a motion to dismiss is denied, the defendant may file his responsive pleading; in a demurrer, the defendant may present his evidence.

 

 

III.   DISMISSAL OF ACTIONS (Rule 17)

 

Dismissal upon notice by plaintiff

(1)     Before the service of an answer or the service of a motion for summary judgment, a complaint may be dismissed by the plaintiff by filing a notice of dismissal. Upon the filing of the notice of dismissal, the court shall issue an order confirming the dismissal. (Sec. 1, Rule 17).

(2)     it is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the order implies, said order merely confirms a dismissal already effected by the filing of the notice of dismissal. The court does not have to approve the dismissal because it has no discretion on the matter. Before an answer or a motion for summary judgment has been served upon the plaintiff, the dismissal by the plaintiff by the filing of the notice is a matter of right. The dismissal occurs as of the date of the notice is filed by the plaintiff and not the date the court issues the order confirming the dismissal.

(3)     Under the clear terms of Sec. 1, Rule 17, the dismissal as a matter of right ceases when an answer or a motion for summary judgment is served on the plaintiff and not when the answer or the motion is filed with the court. Thus, if a notice of dismissal is filed by the plaintiff even after an answer has been filed in court but before the responsive pleading has been served on the plaintiff, the notice of dismissal is still a matter of right.

 

Two-dismissal rule

(1)     The two-dismissal rule applies when the plaintiff has (a) twice dismissed actions, (b) based on or including the same claim, (c) in a court of competent jurisdiction. The second notice of dismissal will bar the refiling of the action because it will operate as an adjudication of the claim upon the merits. In other words, the claim may only be filed twice, the first being the claim embodied in the original complaint. Since as a rule, the dismissal is without prejudice, the same claim may be filed. If the refilled claim or complaint is dismissed again through a second notice of dismissal, that second notice triggers the application of the two-dismissal rule and the dismissal is to be deemed one with prejudice because it is considered as an adjudication upon the merits.

 

Dismissal upon motion by plaintiff

(1)     Once either an answer or motion for summary judgment has been served on the plaintiff, the dismissal is no longer a matter of right and will require the filing of a motion to dismiss, not a mere notice of dismissal. The motion to dismiss will now be subject to the approval of the court which will decide on the motion upon such terms and conditions as are just (Sec. 2, Rule 17). The dismissal under Sec. 2 is no longer a matter of right on the part of the plaintiff but a matter of discretion upon the court.

 

Effect of dismissal upon existing counterclaim

(1)     If a counterclaim has already been pleaded by the defendant prior to the service upon him of the plaintiff’s motion to dismiss, and the court grants said motion to dismiss, the dismissal “shall be limited to the complaint” (Sec. 2, Rule 17). The phraseology of the provision is clear: the counterclaim is not dismissed, whether it is a compulsory or a permissive counterclaim because the rule makes no distinction. The defendant if he so desires may prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action, he must notify the court of his preference within fifteen (15) days from the notice of the plaintiff’s motion to dismiss. Should he opt to prosecute his counterclaim in a separate action, the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint.

(2)     A similar rule is adopted in Sec. 6, Rule 16 and Sec. 3, Rule 17, wherein the dismissal of the counterclaim does not carry with it the dismissal of the counterclaim. The same provision also grants the defendant a choice in the prosecution of his counterclaim.

 

Dismissal due to the fault of plaintiff

(1)     A complaint may be dismissed even if the plaintiff has no desire to have the same dismissed. The dismissal is this case will be through reasons attributed to his fault. Sec. 2, Rule 17 provides the following grounds for dismissal:

(a)     Failure of the plaintiff, without justifiable reasons, to appear on the date on the date of the presentation of his evidence in chief;

(b)     Failure of the plaintiff to prosecute his action for an unreasonable length of time;

(c)     Failure of the plaintiff to comply with the Rules of Court; or

(d)     Failure of the plaintiff to obey any order of the court.

(2)     The dismissal due to the fault of the plaintiff may be done by the court motu propio or upon a motion filed by the defendant (Sec. 2, Rule 17). The court may dismiss an action motu propio:

(a)     Failure to prosecute for unreasonable length of time;

(b)     Failure to appear at the trial;

(c)     Failure to comply with the rules;

(d)     Failure to comply with the order of the court; and

(e)     Lack of jurisdiction.

 

Dismissal of counterclaim, cross-claim or third-part complaint

(1)     The rule on the dismissal of a complaint applies to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone by notice pursuant to Sec. 1, Rule 17 shall be made before a responsive pleading or a motion for summary judgment is served or, if there is none, before the introduction of evidence at the trial or hearing (Sec. 4).

 

IV.  PRE-TRIAL (Rule18)

Concept of pre-trial

(1)     After the last pleading has been served and filed, it shall be the duty of the plaintiff to promptly move ex parte that the case be set for pre-trial.

Nature and purpose

(1)     The conduct of a pre-trial is mandatory. Pre-trial is a procedural device intended to clarify and limit the basic issues between the parties. It thus paves the way for a less cluttered trial and resolution of the case. Its main objective is to simplify, abbreviate and expedite trial, or totally dispense with it (Abubakar vs. Abubakar, 317 SCRA 264). It is a basic precept that the parties are bound to honor the stipulations made during the pre-trial (Interlining Corp. vs. Phil. Trust Co., GR 144190, March 6, 2002).

(2)     Pre-trial is a procedural device held prior to the trial for the court to consider the following purposes:

(a)     The possibility of an amicable settlement or a submission to alternative modes of dispute resolution;

(b)     Simplification of issues;

(c)     Necessity or desirability of amendments to the pleadings;

(d)     Possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof;

(e)     Limitation of the number of witnesses;

(f)      Advisability of a preliminary reference of issues to a commissioner;

(g)     Propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefor be found to exist;

(h)     Advisability or necessity of suspending the proceedings; and

(i)       Other matters as may aid in the prompt disposition of the action (Sec. 2, Rule 18).

Notice of pre-trial

(1)     The notice of pre-trial shall be served on the counsel of the party if the latter is represented by counsel. Otherwise, the notice shall be served on the party himself. The counsel is charged with the duty of notifying his client of the date, time and place of the pre-trial (Sec. 3, Rule 18).

(2)     Notice of pre-trial is so important that it would be grave abuse of discretion for the court for example, to allow the plaintiff to present his evidence ex parte for failure of the defendant to appear before the pre-trial who did not receive through his counsel a notice of pre-trial. Accordingly, there is no legal basis for a court to consider a party notified of the pre-trial and to consider that there is no longer a need to send notice of pre-trial merely because it was his counsel who suggested the date of pre-trail (Agulto vs. Tucson, 476 SCRA 395).

Appearance of parties; effect of failure to appear

(1)     It shall be the duty of both the parties and their counsels to appear at the pre-trial (Sec. 4, Rule 18).

(2)     The failure of the plaintiff to appear shall be cause for the dismissal of the action. This dismissal shall be with prejudice except when the court orders otherwise(Sec. 5, Rule 18). Since the dismissal of the action shall be with prejudice, unless otherwise provided, the same shall have the effect of an adjudication on the merits thus, final. The remedy of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with prejudice is appealable. Under the Rules, it is only when the order of dismissal is without prejudice, that appeal cannot be availed of(Sec. 1[h], Rule 41). Since appeal is available, certiorari is not the remedy because the application of a petition for certiorari under Rule 65 is conditioned upon the absence of appeal or any plain, speedy and adequate remedy (Sec. 1, Rule 65).

(3)     The failure of the defendant to appear shall be cause to allow the plaintiff to present his evidence ex parte and for the court to render judgment on the basis of the evidence presented by the plaintiff (Sec. 5, Rule 18). The order of the court allowing the plaintiff to present his evidence ex parte does not dispose of the case with finality. The order is therefore, merely interlocutory; hence, not appealable. Under Sec. 1(c) of Rule 41, no appeal may be taken from an interlocutory order. The defendant who feels aggrieved by the order may move for the reconsideration of the order and if the denial is tainted with grave abuse of discretion, he may file a petition for certiorari.

 

Pre-trial brief; effect of failure to file

(1)     The parties shall file with the court their respective pre-trial briefs which shall be received at least three (3) days before the date of the pre-trial. This pre-trial brief shall be served on the adverse party (Sec. 6, Rule 18).

(2)     The pre-trial brief shall contain the following matters:

(a)     A statement of their willingness to enter into an amicable settlement or alternative modes of dispute resolution, indicating the desired terms thereof;

(b)     A summary of admitted facts and proposed stipulation of facts;

(c)     The issues to be tried or resolved;

(d)     The documents or exhibits to be presented, stating the purposes thereof;

(e)     A manifestation of their having availed of or their intention to avail of discovery procedures or referral to commissioners; and

(f)      The number and names of the witnesses, and the substance of their respective testimonies (Sec.6, Rule 18).

(3)     Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial (Sec. 6, Rule 18). Hence, if it is the plaintiff who fails to file a pre-trial brief, such failure shall be cause for dismissal of the action. If it is the defendant who fails to do so, such failure shall be cause to allow the plaintiff to present his evidenceex parte. A pre-trial brief is not required in a criminal case.

Distinction between pre-trial in civil case and pre-trial in criminal case

(1)     The pre-trial in a civil case is set when the plaintiff moves ex parte to set the case for pre-trial (Sec.1, Rule 18). The pre-trial in criminal case is ordered by the court and no motion to set the case for pre-trial is required from either the prosecution or the defense (Sec. 1, Rule 118).

(2)     The motion to set the case for pre-trial in a civil case is made after the last pleading has been served and filed (Sec. 1, Rule 18). In a criminal case, the pre-trial is ordered by the court after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused (Sec. 1, Rule 118).

(3)     The pre-trial in a civil case considers the possibility of an amicable settlement as an important objective (Sec. 2[a], Rule 18). The pre-trial in a criminal case does not include the considering of the possibility of amicable settlement of criminal liability as one of its purposes (Sec.1, Rule 118).

(4)     In a civil case, the agreements and admissions made in the pre-trial are not required to be signed by the parties and their counsels. They are to be contained in the record of pre-trial and the pre-trial order (Sec. 7, Rule 18). In a criminal case, all agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel; otherwise, they cannot be used against the accuse (Sec. 2, Rule 118).

(5)     The sanctions for non-appearance in a pre-trial are imposed upon the plaintiff or the defendant in a civil case (Sec. 4, Rule 18). The sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor (Sec. 3, Rule 118).

Civil Pre-trial

Criminal Pre-trial

Mandatory Mandatory
Presence of defendant and counsel mandatory Accused need not be present, but his counsel must be present, otherwise he may be sanctioned
Amicable settlement is discussed Amicable settlement is not discussed, unless the criminal case is covered by summary procedure
Agreement included in pre-trial order need not be in writing Agreements or admissions must be written and signed by the accused and counsel to be admissible against him.
Can have proffer of evidence Proffer of evidence only after trial

 

 

Alternative Dispute Resolution (ADR)

(1)     If the case has already filed a complaint with the trial court without prior recourse to arbitration, the proper procedure to enable an arbitration panel to resolve the parties’ dispute pursuant to the contract is for the trial court to stay the proceedings. After the arbitration proceeding has already been pursued and completed, then the trial court may confirm the award made by the arbitration panel(Fiesta World Mall Corp. vs. Linberg Phils. Inc., GR 152471, Aug. 18, 2006).

(2)     A party has several judicial remedies available at its disposal after the Arbitration Committee denied its Motion for Reconsideration:

(a)     It may petition the proper RTC to issue an order vacating the award on the grounds provided for under Sec. 24 of the Arbitration Law;

(b)     File a petition for review under Rule 43 with the Court of Appeals on questions of fact, of law, or mixed questions of fact and law (Sec. 41, ADR);

(c)     File a petition for certiorari under Rule 65 on the ground that the Arbitration Committee acted without or in excess of its jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction (Insular Savings Bank vs. Far East Bank and Trust Co., GR 141818, June 22, 2006).

 

V.       INTERVENTION (Rule 19)

(1)     Intervention is a legal proceeding by which a person who is not a party to the action is permitted by the court to become a party by intervening in a pending action after meeting the conditions and requirements set by the Rules. This third person who intervenes is one who is not originally impleaded in the action (First Philippine Holdings Corp. Sandiganbayan, 253 SCRA 30; Rule 19).

(2)     Intervention is merely a collateral or accessory or ancillary to the principal action ad not an independent proceeding. With the final dismissal of the original action, the complaint in intervention can no longer be acted upon.

Requisites for intervention

(1)     The following requisites must be complied with before a non-party may intervene in a pending action:

(a)     There must be a motion for intervention filed before rendition of judgment by the trial court (Sec. 1, Rule 19). A motion is necessary because leave of court is required before a person may be allowed to intervene.

(b)     The movant must show in his motion that he has:

(1)     A legal interest in the matter in litigation, the success of either of the parties in the action, or against both parties;

(2)     That the movant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; and

(3)     That the intervention must not only unduly delay or prejudice the adjudication of the rights of the original parties and that the intervenor’s rights may not be fully protected in a separate proceeding (Mabayo Farms, Inc. vs. CA, GR 140058, Aug. 1, 2002).

 

Time to intervene

(1)     The motion to intervene may be filed at any time before the rendition of judgment by the trial court (Sec. 2, Rule 18). Intervention after trial and decision can no longer be permitted (Yau vs. Manila Banking Corp., GR 126731, July 11, 2002).

Remedy for the denial of motion to intervention

(1)     The remedy of the aggrieved party is appeal. Mandamus will not lie except in case of grave abuse of discretion.

 

VI.  SUBPOENA (Rule 21)

(1)     Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted under the laws of the Philippines, or for taking of his deposition (Sec. 1, Rule 21).

(2)     Subpoena duces tecum is a process directed to a person requiring him to bring with him at the hearing or trial of an action any books, documents, or other things under his control.

(3)     Subpoena ad testificandum is a process by which the court, at the instance of a party, commands a witness who has in his possession or control some document or paper that is pertinent to the issues of a pending controversy to produce it as the trial (Black’s Law Disctionary, 5th Ed.).

 

Service of subpoena

(1)     It shall be made in the same manner as personal or substituted service of summons. The original shall be exhibited and a copy thereof delivered to the person on whom it is served, tendering to him the fees for one day’s attendance and the kilometrage allowed by the Rules, except that when a subpoena is issued by or on behalf of the Republic, or an officer or agency thereof, the tender need not be made. The service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the books, documents or things demanded shall alsp be tendered.

(2)     Service of a subpoena shall be made by the sheriff, by his deputy, or by any other person specially authorized, who is not a party and is not less than eighteen (18) years of age (Sec. 6, Rule 21).

 

Compelling attendance of witnesses; Contempt

(1)     In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required, and the cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just cause (Sec. 8).

(2)     Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule (Sec. 9).

 

Quashing of subpoena

(1)     The court may quash a subpoena duces tecum upon motion promptly made and, in any event, at or before the time specified therein: (a) if it is unreasonable and oppressive, or (b) the relevancy of the books, documents or things does not appear, or (c) if the person is whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof (Sec. 4).

(2)     Subpoena ad testificandum may be quashed on the ground that the witness is not bound thereby. In either case, the subpoena may be quashed on the ground that the witness fees and kilometrage allowed by the Rules were not tendered when the subpoena was served (Sec. 4).

 

 

VII. MODES OF DISCOVERY (Rules 23-28)

(1)     Modes of discovery:

(a)     Depositions pending action (Rule 23);

(b)     Depositions before action or pending appeal (Rule 24);

(c)     Interrogatories to parties (Rule 25)

(d)     Admission by adverse party (Rule 26);

(e)     Production or inspection of documents and things (Rule 27); and

(f)      Physical and mental examination of persons (Rule 28).

(2)     The importance of the rules of discovery is that they shorten the period of litigation and speed up adjudication. The evident purpose is to enable the parties, consistent with recognized principles, to obtain the fullest possible knowledge of the facts and issues before civil trials and thus prevent said trials from being carried on in the dark. The rules of discovery serve as (a) devices, along with the pre-trial hearing under Rule 18, to narrow and clarify the basis issues between the parties; and (b) devices for ascertaining the facts relative to those issues (Republic vs. Sandiganbayan, 204 SCRA 212).

(3)     The basic purposes of the rules of discovery are:

(a)     To enable a party to obtain knowledge of material facts within the knowledge of the adverse party or of third parties through depositions;

(b)     To obtain knowledge of material facts or admissions from the adverse party through written interrogatories;

(c)     To obtain admissions from the adverse party regarding the genuineness of relevant documents or relevant matters of fact through requests for admissions;

(d)     To inspect relevant documents or objects, and lands or other property in the possession and control of the adverse party; and

(e)     To determine the physical or mental condition of a party when such is in controversy (Koh vs. IAC, 144 SCRA 259).

 

Depositions Pending Action (Rule 23)

Depositions before action or pending appeal

Meaning of Deposition

(1)     A deposition is the taking of the testimony of any person, whether he be a party or not, but at the instance of a party to the action. This testimony is taken out of court. It may be either by oral examination, or by a written interrogatory (Sec. 1, Rule 23).

(2)     Kinds of depositions:

(a)     Deposition de bene esse – one taken pending action (Sec. 1, Rule 23); and

(b)     Deposition in perpetua rei memoriam – one taken prior to the institution of an apprehended or intended action (Rule 134).

Uses

(1)     A deposition may be sought for use in a future action (Rule 24), during a pending action (Rule 23), or for use in a pending appeal (Rule 24).  If the deposition is for use during a pending action, it is commonly called a deposition benne esse and is governed by Rule 23. If it is to perpetuate a testimony for use in future proceedings as when it is sought before the existence of an action, or for cases on appeal, it is called a deposition in perpetuam rei memoriam. Any or all of the deposition, so far as admissible under the rules of evidence, may be used (a) against any party who was present or represented at the taking of the deposition, or (b) against one who had due notice of the deposition (Sec. 4, Rule 23).

(2)     The deposition may be used for the following purposes:

(a)     For contradicting or impeaching the testimony of the deponent as a witness;

(b)     For any purpose by the adverse party where the deponent is a party;

(c)     For any purpose by any party, where the deponent is a witness if the court finds that:

(1)     The witness is dead;

(2)     The witness resides more than 100 kilometers from the place of trial or hearing, or is out of the Philippines, unless it appears that his absence was procured by the party offering the deposition;

(3)     That the witness is unable to attend or testify because of age, sickness, infirmity, or imprisonment; or

(4)     That the party offering the deposition has been unable to procure the attendance of witnesses by subpoena; or

(5)     When exceptional circumstances exist (Sec. 4, Rule 23).

 

Scope of examination

(1)     Unless otherwise ordered by the court as provided by Sec. 16 or 18, the deponent may be examined regarding any matter not privileged, which is relevant to the pending action, whether relating to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts (Sec. 2).

 

When may Objections to Admissibility be Made

(1)     Subject to the provisions of Sec. 29, objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying (Sec. 6).

When may taking of deposition be terminated or its scope limited

(1)     At any time during the taking of the deposition, on motion or petition of any party or of the deponent and upon showing that the examination is being conducted in bad faith or in such manner as reasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the RTC of the place where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition, as provided in Sec. 16, Rule 23. If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a notice for an order. In granting or refusing such order, the court may impose upon either party or upon the witness the requirement to pay such costs or expenses as the court may deem reasonable (Sec. 18).

 

Written interrogatories to adverse parties

Consequences of refusal to answer

(1)     If a party or other deponent refuses to answer any question upon oral examination, the examination may be completed on other matters or adjourned as the proponent of the question may prefer. The proponent may thereafter apply to the proper court of the place where the deposition is being taken, for an order to compel an answer. The same procedure may be availed of when a party or a witness refuses to answer any interrogatory submitted under Rules 23 or 25.

If the application is granted, the court shall require the refusing party or deponent to answer the question or interrogatory and if it also finds that the refusal to answer was without substantial justification, it may require the refusing party or deponent or the counsel advising the refusal, or both of them, to pay the proponent the amount of the reasonable expenses incurred in obtaining the order, including attorney’s fees.

If the application is denied and the court finds that it was filed without substantial justification, the court may require the proponent or the counsel advising the filing of the application, or both of them, to pay to the refusing party or deponent the amount of the reasonable expenses incurred in opposing the application, including attorney’s fees (Sec. 1, Rule 29).

(2)     If a party or other witness refuses to be sworn or refuses to answer any question after being directed to do so by the court of the place in which the deposition is being taken, the refusal may be considered a contempt of that court (Sec. 2, Rule 29).

(3) If any party or an officer or managing agent of a party refuses to obey an order made under section 1 of this Rule requiring him to answer designated questions, or an order under Rule 27 to produce any document or other thing for inspection, copying, or photographing or to permit it to be done, or to permit entry upon land or other property, or an order made under Rule 28 requiring him to submit to a physical or mental examination, the court may make such orders in regard to the refusal as are just, and among others the following:

(a) An order that the matters regarding which the questions were asked, or the character or description of the thing or land, or the contents of the paper, or the physical or mental condition of the party, or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony, or from introducing evidence of physical or mental condition;

(c) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; and)

(d) In lieu of any of the foregoing orders or in addition thereto, an order directing the arrest of any party or agent of a party for disobeying any of such orders except an order to submit to a physical or mental examination (Sec. 3, Rule 29).

 

Effect of failure to serve written interrogatories

(1)     A party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court, or to give deposition pending appeal, unless allowed by the court or to prevent a failure of justice (Sec. 6, Rule 25). This provision encourages the use of written interrogatories although a party is not compelled to use this discovery procedure, the rule imposes sanctions for his failure to serve written interrogatories by depriving him of the privilege to call the adverse party as a witness or to give a deposition pending appeal.

 

 

Request for admission (Rule 26)

(1)     A party, although not compelled by the Rules, is advised to file and serve a written request for admission on the adverse party of those material and relevant facts at issue which are, or ought to be, within the personal knowledge of said adverse party. The party who fails to file and serve the request shall not be permitted to present evidence on such facts (Sec. 5, Rule 26).

 

Implied admission by adverse party

(1)     Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, which shall not be less than fifteen (15) days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters (Sec. 2, par. 1).

(2)     Objections to any request for admission shall be submitted to the court by the party requested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such objections are resolved, which resolution shall be made as early as practicable (Sec. 2, par. 2).

 

Consequences of failure to answer request for admission

(1)     The facts or documents are deemed admitted. Under the Rules, each of the matters of which an admission is requested shall be deemed admitted unless within a period designated in the request which shall not be less than 15 days after service thereof, or within such further time as the court may allow on motion, the party to whom the request is directed files and serves upon the party requesting the admission a sworn statement either denying specifically the matter of which an admission is requested or setting forth in detail the reason why he cannot truthfully either admit or deny those matters.

 

Effect of admission

(1)     Any admission made by a party pursuant to such request is for the purpose of the pending action only and shall not constitute an admission by him for any other purpose nor may the same be used against him in any other proceeding (Sec. 3).

 

Effect of failure to file and serve request for admission

(1)     A party who fails to file and serve a request for admission on the adverse party of material and relevant facts at issue which are, or ought to be, within the personal knowledge of the latter, shall not be permitted to present evidence on such facts (Sec. 5).

 

Production of inspection of documents or things (Rule 27)

(1)     Upon motion of any party showing good cause therefor, the court in which an action is pending may:

(a)     Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody or control; or

(b)     Order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated relevant object or operation thereon. The order shall specify the time, place and manner of making the inspection and taking copies and photographs, and may prescribe such terms and conditions as are just.

(2)     Requirements for the production or inspection of documents or things:

(a)     A motion must be filed by a party showing good cause therefor;

(b)     The motion must sufficiently describe the document or thing sought to be produced or inspected;

(c)     The motion must be given to all the other parties;

(d)     The document or thing sought to be produced or inspected must constitute or contain evidence material to the pending action;

(e)     The document or thing sought to be produced or inspected must not be privileged; and

(f)      The document or thing sought to be produced or inspected must be in the possession of the adverse party or, at least under his control (Sec. 1, Rule 27; Lime Corp. vs. Moran, 59 Phil. 175)

 

Physical and mental examination of persons (Rule 28)

(1)     Requirements of physical and mental examination of persons:

(a)     The physical or mental condition of a party must be in controversy in the action;

(b)     A motion showing good cause must be filed; and

(c)     Notion of the motion must be given to the party to be examined and to all the other parties (Secs. 1 and 2).

(2)     Rules governing the rights of parties on the report of the examining physician regarding the physical or mental condition of party examined:

(a)     The person examined shall, upon request, be entitled to a copy of the detailed written report of the examining physician setting out his findings and conclusions;

(b)     The party causing the examination to be made shall be entitled upon request to receive from the party examined, a like report of any examination previously or thereafter made, of the same physical or mental condition;

(c)     If the party examined refuses to deliver such report, the court on motion and notice may make an order requiring delivery;

(d)     If a physician fails or refuses to make such report, the court may exclude his testimony if offered at the trial;

(e)     The party examined who obtains a reports of the examination or takes the deposition of the examiner waives any privilege he may have in that action or any other action involving the same controversy, regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical examination (Sec. 4).

 

Consequences of refusal to comply with modes of discovery (Rule 29)

(1)     The following are the consequences of a plaintiff’s refusal to make discovery:

(a)     The examining party may complete the examination on the other matters or adjourn to the same (Sec. 1);

(b)     Thereafter, on reasonable notice to all persons affected thereby, he may apply to the court of the province where the deposition is being taken for an order compelling answer;

(c)     If the court finds that the refusal was without substantial justification, it may order the refusing party or the attorney advising him or both of them to pay the examining party the amount of reasonable attorney’s fees;

(d)     The refusal to answer may be considered as contempt of court (Sec. 2);

(e)     The court may order that the facts sought to be established by the examining party shall e taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order (Sec. 3[a]);

(f)      The court may issue an order refusing to allow the disobedient party to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimony (Sec. 3[b]);

(g)     The court may order the striking out of pleadings or party thereof (Sec. 3[c]);

(h)     The court may stay further proceedings until the order is obeyed;

(i)       The court may dismiss the action or proceeding or any party thereof, or render judgment by default against the disobedient party (Sec. 5);

(j)       The court may order the arrest of any party who refuses to admit the truth of any matter of fact or the genuineness of any document to pay the party who made the request and who proves the truth of any such matters or the genuineness of such document, reasonable expenses incurred in making such proof, including reasonable attorney’s fees (Sec. 4).

 

 

VIII.   TRIAL (Rule 30)

(1)     A trial is the judicial process of investigating and determining the legal controversies, starting with the production of evidence by the plaintiff and ending with his closing arguments (Acosta vs. People, 5 SCRA 774).

Adjournments and postponements

(1)     The general rule is that a court may adjourn a trial from day to day, and to any stated time, as the expeditious and convenient transaction of business may require(Sec. 2).

(2)     The court has no power to adjourn a trial for a period longer than one month from each adjournment, nor more than three (3) months in all, except when authorized in writing by the Court Administrator. A motion for postponement should not be filed on the last hour especially when there is no reason why it could not have been presented earlier (Republic vs. Sandiganbayan, 301 SCRA 237).

(3)     Postponement is not a matter of right. It is addressed to the sound discretion of the court (Garces vs. Valenzuela, 170 SCRA 745).

 

Requisites of motion to postpone trial for absence of evidence

(1)     Trial may be postponed on the ground of absence of evidence upon compliance with the following:

(a)     A motion for postponement must be filed;

(b)     The motion must be supported by an affidavit or sworn certification showing (1) the materiality or relevancy of the evidence, and (2) that due diligence has been used to procure it (Sec. 3).

(2)     If the adverse party admits the facts given in evidence, the trial shall not be postponed even if he reserves the right to object to the admissibility of the evidence(Sec. 3).

 

Requisites of motion to postpone trial illness of party or counsel

(1)     A motion for postponement must be filed;

(2)     The motion must be supported by an affidavit or sworn certification showing that (a) the presence of the party or counsel at the trial is indispensable, and (b) that the character of his illness is such as to render his non-attendance excusable (Sec. 4).

 

Agreed statements of facts

(1)     If the parties agree, in writing, on the facts involved in the action, they may then ask the court to render judgment thereon without the introduction of evidence. If the agreement of facts is partial, trial shall be held as to others (Sec. 6). The agreed statement of facts is conclusive on the parties, as well as on the court. Neither of the parties may withdraw from the agreement, nor may the court ignore the same(McGuire vs. Manufacturers Life Ins., 87 Phil. 370).

 

Order of trial

(1)     Subject to the provisions of Sec. 2, Rule 31, and unless the court for special reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order and shall proceed as follows:

(a)     The plaintiff shall adduce evidence in support of his complaint;

(b)     The defendant shall then adduce evidence in support of his defense, counterclaim, cross-claim and third party complaint;

(c)     The third party defendant, if any, shall adduce evidence of his defense, counterclaim, cross-claim and fourth-party complaint;

(d)     The fourth party, and so forth, if any, shall adduce evidence of the material facts pleaded by them;

(e)     The parties against whom any counterclaim or cross-claim has been pleaded, shall adduce evidence in support of their defense, in the order to be prescribed by the court;

(f)      The parties may then respectively adduce rebutting evidence only, unless the court, for good reasons and in the furtherance of justice, permits them to adduce evidence upon their original case; and

(g)     Upon admission of the evidence, the case shall be deemed submitted for decision, unless the court directs the parties to argue or to submit their respective memoranda or any further pleadings.

If several defendants or third party defendants and so forty having separate defenses appear by different counsel, the court shall determine the relative order of presentation of their evidence (Sec. 5)

 

Consolidation or Severance of hearing or trial (Rule 31)

(1)     Consolidation. When actions involving a common question of law or facts are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay (Sec. 1).

(2)     Severance (Separate) Trials. The court, in furtherance of convenience or to avoid prejudice, may order a separate trial of any claim, cross-claim, counterclaim, or third party complaint, or of any separate issue or of any number of claims, cross-claims, counterclaim, third party complaints or issue (Sec. 2).

 

Delegation of reception of evidence

(1)     The judge of the court where the case is pending shall personally receive the evidence to be adduced by the parties. Reception of the evidence may nevertheless be delegated to the clerk of court who is a member of the bar, in any of the following cases:

(a)     In default hearings;

(b)     In ex parte hearings; or

(c)     In any case by written agreement of the parties (Sec. 9).

 

Trial by commissioners (Rule 32)

(1)     Commissioner includes a referee, an auditor and an examiner (Sec. 1)

Reference by consent

(1)     By written consent of both parties, the court may order any or all of the issues in a case to be referred to a commissioner to be agreed upon by the parties or to be appointed by the court (Sec. 1).

 

Reference ordered on motion

(1)     When the parties do not consent, the court may, upon the application of either or on its own motion, direct a reference to a commissioner in the following cases:

(a)     When the trial of an issue of fact requires the examination of a long account on either side, in which case the commissioner may be directed to hear and report upon the whole issue or any specific question involved therein;

(b)     When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect;

(c)     When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of a case, or for carrying a judgment or order into effect (Sec. 2).

 

Powers of commissioner

(1)     Under the Rules, the court’s order may specify or limit the powers of the commissioner. Hence, the order may direct him to:

(a)     Report only upon particular issues;

(b)     Do or perform particular acts; or

(c)     Receive and report evidence only.

(2)     The order may also fix the date for beginning and closing of the hearings and for the filing of his report.

(3)     Subject to such limitations stated in the order, the commissioner:

(a)     Shall exercise the power to regulate the proceedings in every hearing before him;

(b)     Shall do all acts and take all measures necessary or proper for the efficient performance of his duties under the order’

(c)     May issue subpoenas and subpoenas duces tecum, and swear witnesses; and

(d)     Rule upon the admissibility of evidence, unless otherwise provided in the order of reference (Sec. 3, Rule 32).

 

Commissioner’s report; notice to parties and hearing on the report

(1)     Upon completion of the trial or hearing or proceeding before the commissioner, he shall file with the court his report in writing upon the matters submitted to him by the order of reference. When his powers are not specified or limited, he shall set forth his findings of fact and conclusions or law in his report. He shall attach in his report all exhibits, affidavits, depositions, papers and the transcript, if any, of the evidence presented before him (Sec. 9).

(2)     The commissioner’s report is not binding upon the court which is free to adopt, modify, or reject, in whole or in part, the report. The court may receive further evidence or recommit the report with instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49 Phil. 39).

(3)     Notice of the filing of the report must be sent to the parties for the purpose of giving them an opportunity to present their objections (Santos vs. Guzman, 45 Phil. 646). The failure to grant the parties, in due form, this opportunity to object, may, in some instances, constitute a serious error in violation of their substantial rights (Govt. vs. Osorio, 50 Phil. 864).

The rule, however, is not absolute. In Manila Trading and Supply Co. vs. Phil. Labor Union, 71 Phil. 539, it was ruled that although the parties were not notified of the filing of the commissioner’s reports, and the court failed to set said report for hearing, if the parties who appeared before the commissioner were duly represented by counsel and given an opportunity to be heard, the requirement of due process has been satisfied, and a decision on the basis of such report, with the other evidence of the case is a decision which meets the requirements of fair and open hearing.

(4)     In the hearing to be conducted on the commissioner’s report, the court will review only so much as may be drawn in question by proper objections. It is not expected to rehear the case upon the entire record (Kreidt vs. McCullough and Co., 37 Phi. 474).

 

IX.        DEMURRER TO EVIDENCE (Rule 33)

(1)     Demurrer to evidence is a motion to dismiss filed by the defendant after the plaintiff had rested his case on the ground of insufficiency of evidence (Ballentine’s Law Dictionary).

(2)     The provision of the Rules governing demurrer to evidence does not apply to an election case (Gementiza vs. COMELEC, 353 SCRA 724).

 

Ground

(1)     The only ground for demurrer to evidence is that the plaintiff has no right to relief.

 

Effect of denial; Effect of grant

(1)     In the event his motion is denied, the defendant does not waive his right to offer evidence. An order denying a demurrer to evidence is interlocutory and is therefore, not appealable. It can however be the subject of a petition for certiorari in case of grave abuse of discretion or an oppressive exercise of judicial authority.

(2)     If the motion is granted and the order of dismissal is reversed on appeal, the movants loses his right to present the evidence on his behalf. In the case of reversal, the appellate court shall render judgment for the plaintiff based on the evidence alone.

(3)     It is not correct for the appellate court reversing the order granting the demurrer to remand the case to the trial court for further proceedings. The appellate court should, instead of remanding the case, render judgment on the basis of the evidence submitted by the plaintiff (Radiowealth Finance Corp. vs. Del Rosario, 335 SCRA 288).

 

Waiver of right to present evidence

(1)     If the demurrer is granted but on appeal the order of dismissal is reversed, the defendant is deemed to have waived his right to present evidence.

 

Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case

(1)     In a civil case, leave of court is not required before filing a demurrer. In a criminal case, leave of court is filed with or without leave of court (Sec. 23, Rule 119).

(2)     In a civil case, if the demurrer is granted, the order of dismissal is appealable—since the motion is interlocutory. In a criminal case, the order of dismissal is not appealable because of the constitutional policy against double jeopardy—denial is tantamount to acquittal, final and executory.

(3)     In civil case, if the demurrer is denied, the defendant may proceed to present his evidence. In a criminal case, the accused may adduce his evidence only if the demurrer is filed with leave of court. He cannot present his evidence if he filed the demurrer without leave of court (Sec. 23, Rule 119).

 

X.   JUDGMENTS AND FINAL ORDERS (Rules 34 – 36)

 

Judgment without trial

(1)     The theory of summary judgment is that although an answer may on its face appear to tender issues—requiring trial—yet if it is demonstrated by affidavits, depositions, or admissions that those issues are not genuine, but sham or fictitious, the Court is justified in dispensing with the trial and rendering summary judgment for plaintiff. The court is expected to act chiefly on the basis of the affidavits, depositions, admissions submitted by the movants, and those of the other party in opposition thereto. The hearing contemplated (with 10-day notice) is for the purpose of determining whether the issues are genuine or not, not to receive evidence on the issues set up in the pleadings. A hearing is not thus de riguer. The matter may be resolved, and usually is, on the basis of affidavits, depositions, admissions. Under the circumstances of the case, a hearing would serve no purpose, and clearly unnecessary. The summary judgment here was justified, considering the absence of opposing affidavits to contradict the affidavits (Galicia vs. Polo, L-49668, Nov. 14, 1989; Carcon Devt. Corp. vs. CA, GR 88218, Dec. 17, 1989).

Contents of a judgment

(1)     Judgment has two parts: (a) the body of the judgment or the ratio decidendi, and (b) the dispositive portion of the judgment or fallo. The body of the decision (ratio decidendi) is not the part of the judgment that is subject to execution but the fallo because it is the latter which is the latter which is the judgment of the court. The importance of fallo or dispositive portion of a decision should state whether the complaint or petition is granted or denied, the specific relief granted, and the costs(Morales vs. CA, 461 SCRA 34). It is the dispositive part of the judgment that actually settles and declares the rights and obligations of the parties, finally, definitively, and authoritatively (Light Rail Transit Authority vs. CA, 444 SCRA 125).

(2)     The general rule is that where there is a conflict between the fallo and the ratio decidendi, the fallo controls. This rule rests on the theory that the fallo is the final order while the opinion in the body is merely a statement ordering nothing. Where the inevitable conclusion from the body of the decision is so clear that there was a mere mistake in the dispositive portion, the body of the decision prevails (Poland Industrial Limited vs. National Development Company, 467 SCRA 500).

 

Judgment on the pleadings (Rule 34)

(1)     Where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse party’s pleading, the court may, on motion of that party, direct judgment on such pleading. However, in actions for declaration of nullity or annulment of marriage or for legal separation (or for unliquidated damages, or admission of the truth of allegation of adverse party), the material facts alleged in the complaint shall always be proved (Sec. 1).

 

Summary judgments (Rule 35)

(1)     A summary judgment or accelerated judgment is a procedural technique to promptly dispose of cases where the facts appear undisputed and certain from the pleadings, depositions, admissions and affidavits on record, of for weeding out sham claims or defenses at an early stage of the litigation to avoid the expense and loss of time involved in a trial. Its object is to separate what is formal or pretended denial or averment from what is genuine and substantial so that only the latter may subject a party-in-interest to the burden of trial. Moreover, said summary judgment must be premised on the absence of any other triable genuine issues of fact. Otherwise, the movants cannot be allowed to obtain immediate relief. A genuine issue is such issue of fact which requires presentation of evidence as distinguished from a sham, fictitious, contrived or false claim (Monterey Foods Corp. vs. Eserjose, GR 153126, Sept. 11, 2003).

(2)     The requisites are: (a) there must be no genuine issue as to any material fact, except for the amount of damages; and (b) the party presenting the motion for summary judgment must be entitled to a judgment as a matter of law.

 

For the claimant

(1)     A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in answer thereto has been served, move with supporting affidavits, depositions or admissions for a summary judgment in his favor upon all or any part thereof (Sec. 1).

 

For the defendant

(1)     A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time, move with supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or any part thereof (Sec. 2).

 

When the case not fully adjudicated

(1)     If on motion, judgment is not rendered upon the whole case of for all the reliefs sought and a trail is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel shall ascertain what material facts exist without substantial controversy and what are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. The facts so specified shall be deemed established, and the trial shall be conducted on the controverted facts accordingly (Sec. 4, Rule 35).

 

Affidavits and attachments

(1)     Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. 5).

(2)     Should it appear to its satisfaction at any time that any of the affidavits presented pursuant to the Rules are presented in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending party or counsel to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including attorney’s fees. It may, after hearing, further adjudge the offending party or counsel guilty of contempt (Sec. 6).

 

Judgments on the pleadings versus summary judgments

(1)     In the judgment on the pleadings, the answer does not tender an issue; in summary judgment, there is an issue tendered in the answer, but it is not genuine or real issue as may be shown by affidavits and depositions that there is no real issue and that the party is entitled to judgment as a matter of right;

(2)     In judgment on the pleadings, the movants must give a 3-day notice of hearing; while in summary judgment, the opposing party is given 10 days notice;

(3)     In judgment on the pleadings, the entire case may be terminated; while in summary judgment, it may only be partial;

(4)     In judgment on the pleadings, only the plaintiff or the defendants as far as the counterclaim, cross-claim or third-party complaint is concerned can file the same; while in summary judgment, either the plaintiff or the defendant may file it.

 

Rendition of judgments and final orders

(1)     Rendition of judgment is the filing of the same with the clerk of court. It is not the pronouncement of the judgment in open court that constitutes the rendition. Even if the judgment has already been put in writing and signed, it is still subject to amendment if it has not yet been filed with the clerk of court and before its filing does not yet constitute the real judgment of the court (Ago vs. CA, 6 SCRA 530). It is not the writing of the judgment or its signing which constitutes rendition of the judgment(Castro vs. Malazo, 99 SCRA 164).

(2)     A judgment or final order determining the merits of the case shall be in writing personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him, and filed with the clerk of the court(Sec. 1, Rule 36).

 

Entry of judgment and final order

(1)     If no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules, the judgment or final order shall forthwith be entered by the clerk in the book of entries of judgments. The date of finality of the judgment or final order shall be deemed the date of its entry. The record shall contain the dispositive part of the judgment or final order and shall be signed by the clerk, with a certificate that such judgment or final order has become final and executor (Sec. 2).

(2)     The entry of judgment refers to the physical act performed by the clerk of court in entering the dispositive portion of the judgment in the book of entries of judgment and after the same has become final and executor. The record shall contain the dispositive portion of the judgment or final order and shall be signed by the clerk of court, with a certificate by said clerk that the judgment has already become final and executor (Sec. 2, Rule 36).

(3)     There are some proceedings the filing of which is reckoned from the date of the entry of judgment: (a) the execution of a judgment by motion is within five (5) years from the entry of the judgment (Sec. 6, Rule 39); (b) the filing of a petition for relief has, as one of its periods, not more than six (6) months from the entry of the judgment or final order (Sec. 3, Rule 38).

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2012 Remedial Law Reviewer (Post Judgment Remedies)

Posted on March 16, 2012. Filed under: Bar Review Materials, Remedial Law | Tags: , , , |

   POST JUDGMENT REMEDIES (Rules 37-38, 40–47, 52-53)

 

(1)     Remedies before a judgment becomes final and executory

 

(a)     Motion for reconsideration (prohibited in a case that falls under summary procedure) (Rules 37, 52);

(b)     Motion for new trial (Rules 37, 53); and

(c)     Appeal (Rules 40, 41, 42, 43, 45)

 

(2)     Remedies after judgment becomes final and executory

 

(a)     Petition for relief from judgment;

(b)     Action to annul a judgment;

(c)     Certiorari; and

(d)     Collateral attack of a judgment.

 

Motion for New Trial or Reconsideration (Rule 37)

 

Grounds for a motion for new trial

 

(1)     Fraud (extrinsic), accident, mistake (of fact and not of law) or excusable negligence which ordinary prudence could not have guarded against and by reason of which such aggrieved party has probably been impaired in his rights;

(2)     Newly discovered evidence (Berry Rule), which he could not, with reasonable diligence, have discovered and produced at the trial, and which if presented would probably alter the result; and

(3)     Award of excessive damages, or insufficiency of the evidence to justify the decision, or that the decision is against the law (Sec. 1, Rule 37).

 

Grounds for a motion for reconsideration

 

(1)     The damages awarded are excessive;

(2)     The evidence is insufficient to justify the decision or final order;

(3)     The decision or final order is contrary to law (Sec. 1).

 

When to file

 

(1)     A motion for new trial should be filed within the period for taking an appeal. Hence, it must be filed before the finality of the judgment (Sec. 1). No motion for extension of time to file a motion for reconsideration shall be allowed. In Distilleria Limtuaco vs. CA, 143 SCRA 92, it was said that the period for filing a motion for new trial is within the period for taking an appeal.

(2)     The period for appeal is within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order (Sec. 3, Rule 41). A record on appeal shall be required only in special proceedings and other cases of multiple or separate appeals(Sec. 3, Rule 40).

 

Denial of the motion; effect

 

(1)     If the motion is denied, the movants has a “fresh period” of fifteen days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice of appeal.

(2)     When the motion for new trial is denied on the ground of fraud, accident, mistake of fact or law, or excusable negligence, the aggrieved party can no longer avail of the remedy of petition for relief from judgment (Francisco vs. Puno, 108 SCRA 427).

 

Grant of the motion; effect

 

(1)     If a new trial be granted in accordance with the provisions of the rules, the original judgment shall be vacated or set aside, and the action shall stand for trial de novo; but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues, shall be used at the new trial without retaking the same (Sec. 6). The filing of the motion for new trial or reconsideration interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).

(2)     If the court grants the motion (e.g., it finds that excessive damages have been awarded or that the judgment or final order is contrary to the evidence or law), it may amend such judgment or final order accordingly (Sec. 3). The amended judgment is in the nature of a new judgment which supersedes the original judgment. It is not a mere supplemental decision which does not supplant the original but only serves to add something to it (Esquivel vs. Alegre, 172 SCRA 315). If the court finds that a motion affects the issues of the case as to only a part, or less than all of the matters in controversy, or only one, or less that all of the parties to it, the order may grant a reconsideration as to such issues if severable without interfering with the judgment or final order upon the rest (Sec. 7).

 

Remedy when motion is denied

 

(1)     The party aggrieved should appeal the judgment. This is so because a second motion for reconsideration is expressly prohibited under the Interim Rules (Sec. 5).

(2)     An order denying a motion for reconsideration or new trial is not appealable, the remedy being an appeal from the judgment or final order under Rule 38. The remedy from an order denying a motion for new trial is not to appeal from the order of denial. Again, the order is not appealable. The remedy is to appeal from the judgment or final order itself subject of the motion for new trial (Sec. 9, rule 37).

 

Fresh 15-day period rule

 

(1)     If the motion is denied, the movants has a fresh period of 15 days from receipt or notice of the order denying or dismissing the motion for reconsideration within which to file a notice to appeal. This new period becomes significant if either a motion for reconsideration or a motion for new trial has been filed but was denied or dismissed. This fresh period rule applies only to Rule 41 governing appeals from the RTC but also to Rule 40 governing appeals from MTC to RTC, Rule 42 on petitions for review from the RTC to the CA, Rule 43 on appeal from quasi-judicial agencies to the CA, and Rule 45 governing appeals by certiorari to the SC. Accordingly, this rule was adopted to standardize the appeal periods provided in the Rules to afford fair opportunity to review the case and, in the process, minimize errors of judgment. Obviously, the new 15 day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41 (Neypes vs. CA, GR 141524, Sept. 14, 2005). The Neypes ruling shall not be applied where no motion for new trial or motion for reconsideration has been filed in which case the 15-day period shall run from notice of the judgment.

(2)     The fresh period rule does not refer to the period within which to appeal from the order denying the motion for new trial because the order is not appealable under Sec. 9, Rule 37. The non-appealability of the order of denial is also confirmed by Sec. 1(a), Rule 41, which provides that no appeal may be taken from an order denying a motion for new trial or a motion for reconsideration.

 

 

Appeals in General

 

(1)     The right to appeal is not part of due process but a mere statutory privilege that has to be exercised only in the manner and in accordance with the provisions of law(Stolt-Nielsen vs. NLRC, GR 147623, Dec. 13, 2005). The general rule is that the remedy to obtain reversal or modification of judgment on the merits is appeal. This is true even if the error, or one of the errors, ascribed to the court rendering the judgment is its lack of jurisdiction over the subject matter, or the exercise of power in excess thereof, or grave abuse of discretion in the findings of facts or of law set out in the decision (Association of Integrated Security Force of Bislig-ALU vs. CA, GR 140150, Aug. 22, 2005). An appeal may be taken only from judgments or final orders that completely dispose of the case (Sec. 1, Rule 41). An interlocutory order is not appealable until after the rendition of the judgment on the merits.

(2)     Certain rules on appeal:

(a)     No trial de novo anymore. The appellate courts must decide the case on the basis of the record, except when the proceedings were not duly recorded as when there was absence of a qualified stenographer (Sec. 22[d], BO 129; Rule 21[d], Interim RulesI);

(b)     There can be no new parties;

(c)     There can be no change of theory (Naval vs. CA, 483 SCRA 102);

(d)     There can be no new matters (Ondap vs. Aubga, 88 SCRA 610);

(e)     There can be amendments of pleadings to conform to the evidence submitted before the trial court (Dayao vs. Shell, 97 SCRA 407);

(f)      The liability of solidarity defendant who did not appeal is not affected by appeal of solidarity debtor (Mun. of Orion vs. Concha, 50 Phil. 679);

(g)     Appeal by guarantor does not inure to the principal (Luzon Metal vs. Manila Underwriter, 29 SCRA 184);

(h)     In ejectment cases, the RTC cannot award to the appellant on his counterclaim more than the amount of damages beyond the jurisdiction of the MTC (Agustin vs. Bataclan, 135 SCRA 342);

(i)       The appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record (Rule 21, Interim Rules).

 

Judgments and final orders subject to appeal

 

(1)     An appeal may be taken only from judgments or final orders that completely dispose of the case (Sec. 1, Rule 41). An interlocutory order is not appealable until after the rendition of the judgment on the merits.

 

Matters not appealable

 

(1)     No appeal may be taken from:

(a)     An order denying a motion for new trial or a motion for reconsideration;

(b)     An order denying a petition for relief or any similar motion seeking relief from judgment;

(c)     An interlocutory order;

(d)     An order disallowing or dismissing an appeal;

(e)     An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent;

(f)      An order of execution;

(g)     A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims, and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and

(h)     An order dismissing and action without prejudice (Sec. 1, Rule 41).

(2)     A question that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair play, justice and due process (Bank of Commerce vs. Serrano, 451 SCRA 484). For an appellate court to consider a legal question, it should have been raised in the court below (PNOC vs. CA, 457 SCRA 32). It would be unfair to the adverse party who would have no opportunity to present evidence in contra to the new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. it is true that this rule admits of exceptions as in cases of lack of jurisdiction, where the lower court committed plain error, where there are jurisprudential developments affecting the issues, or when the issues raised present a matter of public policy (Baluyot vs. Poblete, GR 144435, Feb. 6, 2007).

(3)     The rule under (2) however is only the general rule because Sec. 8, Rule 51 precludes its absolute application allowing as it does certain errors which even if not assigned may be ruled upon by the appellate court. hence, the court may consider an error not raised on appeal provided the same falls within any of the following categories:

(a)     It is an error that affects the jurisdiction over the subject matter;

(b)     It is an error that affects the validity of the judgment appealed from;

(c)     It is an error which affects the proceedings;

(d)     It is an error closely related to or dependent on an assigned error and properly argued in the brief; or

(e)     It is a plain and clerical error.

 

Remedy against judgments and orders which are not appealable

 

(1)     In those instances where the judgment or final order is not appealable, the aggrieved party may file the appropriate special civil action under Rule 65.  Rule 65 refers to the special civil actions of certiorari, prohibition and mandamus. Practically, it would be the special civil action of certiorari that would be availed of under most circumstances. The most potent remedy against those judgments and orders from which appeal cannot be taken is to allege and prove that the same were issued without jurisdiction, with grave abuse of discretion or in excess of jurisdiction, all amounting to lack of jurisdiction.

 

Modes of appeal (Sec. 2, Rule 41)

 

(a)     Ordinary appeal. The appeal to the CA in cases decided by the RTC in the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where the law or the Rules so require. In such cases, the record on appeal shall be filed and served in like manner.

(b)     Petition for review. The appeal to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction shall be by petition for review in accordance with Rule 42.

(c)     Petition for review on certiorari. In all cases where only questions of law are raised or involved, the appeal shall be to the SC by petition for review on certiorari in accordance with Rule 45.

 

Issues to be raised on appeal

 

(1)     Whether or not the appellant has filed a motion for new trial in the court below, he may include in his assignment or errors any question of law or fact that has been raised in the court below and which is within the issues framed by the parties (Sec. 15, Rule 44).

 

Period of appeal

 

(1)     Period of Ordinary Appeal under Rule 40. An appeal may be taken (from MTC to RTC) within 15 days after notice to the appellant of the judgment or final order appealed from. Where a record on appeal is required, the appellant shall file a notice of appeal and a record on appeal within 30 days after notice of the judgment or final order. The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed (Sec. 2).

(2)     Period of Ordinary Appeal under Rule 41). The appeal shall be taken within 15 days from notice of the judgment or final order appealed from. Where a record on appeal is required, the appellants shall file a notice of appeal and a record on appeal within 30 days from notice of the judgment or final order. However, on appeal inhabeas corpus cases shall be taken within 48 hours from notice of the judgment or final order appealed from (AM No. 01-1-03-SC, June 19, 2001). The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion for extension of time to file a motion for new trial or reconsideration shall be allowed(Sec. 3). If the record on appeal is not transmitted to the CA within 30 days after the perfection of appeal, either party may file a motion with the trial court, with notice to the other, for the transmittal of such record or record on appeal (Sec. 3, Rule 44).

(3)     Period of Petition for Review under Rule 42. The petition shall be filed and served within 15 days from notice of the decision sought to be reviewed or of the denial of petitioner’s motion for new trial or reconsideration filed in due time after judgment. The court may grant and additional period of 15 days only provided the extension is sought (a) upon proper motion, and (b) there is payment of the full amount of the docket and other lawful fees and the deposit for costs before the expiration of the reglementary period. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days (Sec. 1).

(4)     Period of Appeal by Petition for Review under Rule 43. The appeal shall be taken within 15 days from notice of the award, judgment, final order or resolution, or from the date of its last publication, if publication is required by law for its effectivity, or of the denial of petitioner’s motion for new trial or reconsideration duly filed in accordance with the governing law of the court or agency a quo. Only one (1) motion for reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the docket fee before the expiration of the reglementary period, the CA may grant an additional period of 15 days only within which to file the petition for review. No further extension shall be granted except for the most compelling reason and in no case to exceed 15 days (Sec. 4).

(5)     Period of Appeal by Petition for Review on Certiorari under Rule 45. The appeal which shall be in the form of a verified petition shall be filed within 15 days from notice of the judgment, final order or resolution appealed from, or within 15 days from notice of the denial of the petitioner’s motion for new trail or motion for reconsideration filed in due time. The Supreme Court may, for justifiable reasons, grant an extension of 30 days only within which to file the petition provided, (a) there is a motion for extension of time duly filed and served, (b) there is full payment of the docket and other lawful fees and the deposit for costs, and (c) the motion is filed and served and the payment is made before the expiration of the reglementary period (Sec. 2).

 

MODE OF APPEAL

PERIOD OF APPEAL

Period of appeal if party files MFR or New Trial (Neypes Rule)
Ordinary Appeal (Rules 40, 41)
 

a)  Notice of Appeal (Rule 40)

Within 15 days from receipt of judgment or final order Within 15 days from receipt of order denying motion for reconsideration or new trial
 

 

b) Record on Appeal (Rule 41)

 

 

Within 30 days from receipt of judgment or final order

The 30-day to file the notice of appeal and record on appeal should reckoned from the receipt of the order denying the motion for new trial or motion for reconsideration (Zayco vs. Himlo, GR 170243, April 16, 2008)
Petition for Review (Rule 42) Within 15 days from receipt of judgment Within 15 days from receipt of the order denying motion for reconsideration or new trial
Petition for Review (Rule 43) Within 15 days from receipt of judgment or final order or of last publication Within 15 days from receipt of the order denying motion for reconsideration or new trial
Appeal by Certiorari (Rule 45) Within 15 days from receipt of judgment or final order Within 15 days from receipt of the order denying motion for reconsideration or new trial

 

 

Perfection of appeals

 

(1)     For Ordinary Appeals from MTC to the RTC (Rule 40) and from the RTC to the CA (Rule 41).

(a)     A party’s appeal by notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time;

(b)     A party’s appeal by record on appeal is deemed perfected as to him with respect to the subject matter thereof upon the approval of the record on appeal filed in due time;

(c)     In appeals by notice of appeal, the court loses jurisdiction only over the subject matter thereof upon the approval of the records on appeal filed in due time and the expiration of the time to appeal of the other parties;

(d)     In either case, prior to the transmittal of the original record or the record on appeal, the court may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2, Rule 39, and allow withdrawal of the appeal (Sec. 9, Rule 41).

(2)     Perfection of Appeal by Petition for Review under Rule 42. (Sec.8)

(a)     Upon the timely filing of a petition for review and the payment of the corresponding docket and other lawful fees, the appeal is deemed perfected as to the petitioner. The RTC loses jurisdiction over the case upon the perfection of the appeals filed in due time and the expiration of the time to appeal of the other parties.

However, before the CA give due course to the petition, the RTC may issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal, approve compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with Sec. 2, Rule 39, and allow withdrawal of the appeal.

(b)     Except in civil cases decided under Rules on Summary Procedure, the appeal shall stay the judgment or final order unless the CA, the law, or the Rules provide otherwise.

(c)     A party’s appeal by notice of appeal is deemed perfected as to him upon the filing thereof in due time, and a party’s appeal by record on appeal is deemed perfected as to him upon the approval thereof. In the first case, the court loses jurisdiction over the whole case upon the perfection of the appeals taken by the parties who have appealed and the expiration of the time to appeal of the other parties. In the second case, the court loses jurisdiction over the subject matter thereof upon the approval of all the records on appeal filed by the parties who have appealed and the expiration of the time to appeal of the other parties; and retains jurisdiction over the remaining subject matter not covered by the appeal.

 

Appeal from judgments or final orders of the MTC

 

(1)     An appeal from a judgment or final order of a MTC may be taken to the RTC exercising jurisdiction over the area to which the former pertains. The title of the case shall remain as it was in the court of origin, but the party appealing the case shall be further referred to as the appellant and the adverse party as the appellee (Sec. 1, Rule 40).

(2)     The appeal is taken by filing a notice of appeal with the court that rendered the judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the judgment or final order or part thereof appealed from, and state the material dates showing the timeliness of the appeal. A record on appeal shall be required only in special proceedings and in other cases of multiple or separate appeals(Sec. 3).

(3)     Procedure (Sec. 7):

(a)     Upon receipt of the complete record or the record on appeal, the clerk of court of the RTC shall notify the parties of such fact.

(b)      Within 15 days from such notice, the appellant shall submit a memorandum which shall briefly discuss the errors imputed to the lower court, a copy of which shall be furnished by him to the adverse party. Within 15 days from receipt of appellant’s memorandum, the appellee may file his memorandum. Failure of appellant to file a memorandum shall be a ground for dismissal of the appeal.

(c)     Once the filing of the memorandum of the appellee, or the expiration of the period to do so, the case shall be considered submitted for decision. The RTC shall decide the case on the basis of the record of the proceedings had in the court of origin and such memoranda as are filed.

 

Appeal from judgments or final orders of the RTC

 

(1)     Rule 41 applies to appeals from the judgment or final order of the RTC in the exercise of its original jurisdiction. This appeal is called an “ordinary appeal”. Rule 42 applies to an appeal from the judgment or final order of the RTC to the CA in cases decided by the RTC in the exercise of its appellate jurisdiction.

 

Appeal from judgments or final orders of the CA

 

(1)     Appeal by certiorari under Rule 45 shall be taken to the SC where the petitions shall raise only questions of law distinctly set forth. The general rule is that the SC shall not entertain questions of fact, except in the following cases:

(a)     The conclusion of the CA is grounded entirely on speculations, surmises and conjectures;

(b)     The inference made is manifestly mistaken, absurd or impossible;

(c)     There is grave abuse of discretion;

(d)     The judgment is based on misapprehension of facts;

(e)     The findings of facts are conflicting;

(f)      The CA in making its findings went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee;

(g)     The findings are contrary to those of the trial court;

(h)     The facts set forth in the petition as well as in the petitioner’s main and reply briefs are not disputed by the respondents;

(i)       The findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record; or

(j)       Those filed under Writs of amparo, habeas data, or kalikasan.

 

Appeal from judgments or final orders of the CTA

 

(1)     Under Sec. 11 of RA 9282, no civil proceeding involving matters arising under the NIRC, the TCC or the Local Government Code shall be maintained, except as herein provided, until and unless an appeal has been previously filed with the CTA and disposed of in accordance with the provisions of the Act.  A party adversely affected by a resolution of a Division of CTA on a motion for reconsideration or new trial, may file a petition for review with the CTA en banc.

(2)     Sec. 11 of RA 9282 further provides that a party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified petition for review on certiorari pursuant to Rule 45.

 

Review of final judgments or final orders of the COMELEC

 

(1)     A judgment, resolution or final order of the COMELEC may be brought by the aggrieved party to the SC on certiorari under Rule 45 by filing the petition within 30 days from notice (Sec. 3, Rule 64).

 

Review of final orders of the CSC

 

(1)     A judgment, final order or resolution of the Civil Service Commission may be taken to the CA under Rule 43. Note the difference between the mode of appeal from a judgment of the CSC and the mode of appeal from the judgments of other constitutional commissions.

 

Review of final orders of the COA

 

(1)     A judgment, resolution or final order of the Commission on Audit may be brought by the aggrieved party to the SC on certiorari under Rule 65 by filing the petition within 30 days from notice (Sec. 3, Rule 64).

 

Review of final orders of the Ombudsman

 

(1)     In administrative disciplinary cases, the ruling of the Office of the Ombudsman are appealable to the Court of Appeals. Sec. 27 of RA 6770 (Ombudsman Act of 1987) insofar as it allowed a direct appeal to the SC was declared unconstitutional in Fabian vs. Desierto because the statute, being one which increased the appellate jurisdiction of the SC was enacted without the advice and concurrence of the Court. Instead, appeals from decisions of the Ombudsman in administrative disciplinary actions should be brought to the CA under Rule 43 (Gonzales vs. Rosas, 423 SCRA 288).

(a)     The CA has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in administrative cases only. If cannot, therefore, review the orders, directives or decisions of the OO in criminal or non-administrative cases (Golangco vs. Fung, GR 147640-762, Oct. 12, 2006).

(b)     Although as a consequence of Fabian appeals from the Ombudsman in administrative cases are now cognizable by the CA, nevertheless in cases in which it is alleged that the Ombudsman has acted with grave abuse of discretion amounting to lack or excess of jurisdiction amounting to lack or excess of jurisdiction, a special civil action of certiorari under Rule 65 may be filed with the SC to set aside the Ombudsman’s order or resolution (Nava vs. NBI, 455 SCRA 377).

(2)     In criminal cases, the ruling of the Ombudsman shall be elevated to the SC by way of Rule 65. The SC’s power to review over resolutions and orders of the Office of the Ombudsman is restricted on to determining whether grave abuse of discretion has been committed by it. The Court is not authorized to correct every error or mistake of the Office of the Ombudsman other than grave abuse of discretion (Villanueva vs. Ople, GR 165125, Nov. 18, 2005). The remedy is not a petition for review on certiorari under Rule 45.

 

Review of final orders of the NLRC

 

(1)     The remedy of a party aggrieved by the decision of the National Labor Relations Commission is to promptly move for the reconsideration of the decision and if denied to timely file a special civil action of certiorari under Rule 45 within 60 days from notice of the decision. In observance of the doctrine of hierarchy of courts, the petition for certiorari should be filed in the CA (St. Martin Funeral Homes vs. NLRC, GR 130866, Sept. 16, 1998).

 

 

Review of final orders of the quasi-judicial agencies

 

(1)     Appeals from judgments and final orders of quasi-judicial bodies/agencies are now required to be brought to the CA under the requirements and conditions set forth in Rule 43. This rule was adopted precisely to provide a uniform rule of appellate procedure from quasi-judicial bodies (Carpio vs. Sulu Resource Devt. Corp., 387 SCRA 128).

(2)     The appeal under Rule 43 may be taken to the CA whether the appeal involves a question of fact, a question of law, or mixed questions of fact and law. The appeal shall be taken by filing a verified petition for review with the CA. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed unless the CA shall direct otherwise upon such terms as it may deem just.

 

Reliefs from Judgments, Orders and Other Proceedings (Rule 38)

 

(1)     A petition for relief from judgment is an equitable remedy that is allowed only in exceptional cases when there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition (Trust International Paper Corp. vs. Pelaez, GR 164871, Aug. 22, 2006).

(2)     Under Sec. 5, Rule 38, the court in which the petition is filed, may grant suchpreliminary injunction to preserve the rights of the parties upon the filing of a bond in favor of the adverse party. The bond is conditioned upon the payment to the adverse party of all damages and costs that may be awarded to such adverse party by reason of the issuance of the injunction (Sec. 5).

 

Grounds for availing of the remedy (petition for relief)

 

(1)     When a judgment or final order is entered, or any other proceeding is thereafter taken against a party in any court through (a) fraud, (b) accident, (c) mistake, or (c) excusable negligence, he may file a petition in such court and in the same case praying that the judgment, order or proceeding be set aside (Sec. 1, Rule 38).

(2)     When the petitioner has been prevented from taking an appeal by fraud, mistake, or excusable negligence (Sec. 2).

 

Time to file petition

 

(1)     A petition for relief from judgment, order or other proceedings must be verified, filed within 60 days after the petitioner learns of the judgment, final order, or other proceeding to be set aside, and not more than six (6) months after such judgment or final order was entered, or such proceeding was taken; and must be accompanied with affidavits showing the fraud, accident, mistake, or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be (Sec. 3, Rule 38).

 

Contents of petition

 

(1)     The petition must be verified and must be accompanied with affidavits showing fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the petitioner’s good and substantial cause of action or defense, as the case may be (Sec. 3).

 

Annulment of Judgments, or Final Orders and Resolutions (Rule 47)

 

Grounds for annulment

 

(1)     The annulment may be based only on the grounds of extrinsic fraud and lack of jurisdiction. Extrinsic fraud shall not be a valid ground if it was availed of, or could have been availed of, in a motion for new trial or petition for relief (Sec. 2, Rule 47).

 

Period to file action

 

(1)     If based on extrinsic fraud, the action must be filed within four (4) years from its discovery; and if based on lack of jurisdiction, before it is barred by laches or estoppels (Sec. 3).

 

Effects of judgment of annulment

 

(1)     A judgment of annulment shall set aside the questioned judgment or final order or resolution and render the same null and void, without prejudice to the original action being refilled in the proper court. However, where the judgment or final order or resolution is set aside on the ground of extrinsic fraud, the court may on motion order the trial court to try the case as if a timely motion for new trial had been granted therein (Sec. 7, Rule 47).

 

Collateral attack of judgments

 

(1)     A collateral attack is made when, in another action to obtain a different relief, an attack on the judgment is made as an incident in said action. This is proper only when the judgment, on its face, is null and void, as where it is patent that the court which rendered said judgment has no jurisdiction (Co vs. CA, 196 SCRA 705). Examples: A petition for certiorari under Rule 65 is a direct attack. It is filed primarily to have an order annulled. An action for annulment of a judgment is likewise a direct attack on a judgment. A motion to dismiss a complaint for collection of a sum of money filed by a corporation against the defendant on the ground that the plaintiff has no legal capacity to use is a collateral attack on the corporation. A motion to dismiss is incidental to the main action for sum of money. It is not filed as an action intended to attack the legal existence of the plaintiff (Co vs. CA, 196 SCRA 705).

 

 

  1. II.          EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS (Rule 39)

 

Difference between finality of judgment for purpose of appeal; for purposes of execution

 

(1)     The term “final” when used to describe a judgment may be used in two senses. In the first, it refers to a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does not finally terminate or dispose of the case (Rudecon Management Corp. vs. Singson, 4554 SCRA 612). Since the finality of a judgment has the effect of ending the litigation, an aggrieved party may then appeal from the judgment. Under Sec. 1, Rule 41, an appeal may be taken from a judgment or final order that completely disposes of the case. Under the same rule, an appeal cannot be taken from an interlocutory order.

(2)     In another sense, the word “final” may refer to a judgment that is no longer appealable and is already capable of being executed because the period for appeal has elapsed without a party having perfected an appeal or if there has been appeal, it has already been resolved by a highest possible tribunal (PCGG vs. Sandiganbayan, 455 SCRA 526). In this sense, the judgment is commonly referred to a s one that is final and executory.

 

When execution shall issue; Execution as a matter of right (Sec. 1)

 

(1)     Execution is a matter of right upon the expiration of the period to appeal and no appeal was perfected from a judgment or order that disposes of the action or proceeding (Sec. 1, Rule 39). Once a judgment becomes final and executory, the prevailing party can have it executed as a matter of right, and the issuance of a writ of execution becomes the ministerial duty of the court. Once a decision becomes final and executory, it is the ministerial duty of the presiding judge to issue a writ of execution except in certain cases, as when subsequent events would render execution of judgment unjust (Mangahas vs. Paredes, GR 157866, Feb. 14, 2007).

(2)     The above principles have been consistently applied. Thus, in a subsequent ruling the Court declared: ”Once a judgment becomes final, it is basic that the prevailing party is entitled as a matter of right to a writ of execution the issuance of which is the trial court’s ministerial duty, compellable by mandamus” (Greater Metropolitan Manila Solid Waste Management Committee vs. Jancom Environmental Corp., GR 2163663, Jan. 30, 2006).

(3)     Judgments and orders become final and executor by operation of law and not by judicial declaration. The trial court need not even pronounce the finality of the order as the same becomes final by operation of law. Its finality becomes a fact when the reglementary period for appeal lapses, and no appeal is perfected within such period (Testate of Maria Manuel Vda. De Biascan, 374 SCRA 621; Vlason Enterprises vs. CA, 310 SCRA 26).

(4)     Execution is a matter or right after expiration of period to appeal and no appeal is perfected, except in the following cases:

(a)     Where judgment turns out to be incomplete or conditional;

(b)     Judgment is novated by the parties;

(c)     Equitable grounds (i.e., change in the situation of the parties—supervening fact doctrine)

(d)     Execution is enjoined (i.e., petition for relief from judgment or annulment of judgment with TRO or writ of preliminary injunction);

(e)     Judgment has become dormant; or

(f)      Execution is unjust or impossible.

 

Discretionary execution (Sec. 2)

 

(1)     The concept of discretionary execution constitutes an exception to the general rule that a judgment cannot be executed before the lapse of the period for appeal or during the pendency of an appeal. Under Sec. 1, Rule 39, execution shall issue only as a matter of right upon a judgment or final order that finally disposes of the action or proceeding upon the execution of the period to appeal therefrom if no appeal has been duly perfected.

(2)     A discretionary execution is called “discretionary” precisely because it is not a matter of right. The execution of a judgment under this concept is addressed to the discretionary power of the court (Bangkok Bank Public Company Ltd. vs. Lee, GR 159806, Jan. 29, 2006). Unlike judgments that are final and executor, a judgment subject to discretionary execution cannot be insisted upon but simply prayed and hoped for because a discretionary execution is not a matter of right.

(3)     A discretionary execution like an execution pending appeal must be strictly construed because it is an exception to the general rule. It is not meant to be availed of routinely because it applies only in extraordinary circumstances. It should be interpreted only insofar as the language thereof fairly warrants, and all doubts should be resolved in favor of the general rule (Planters Products, Inc. vs. CA, GR 106052, Oct. 22, 1999). Where the execution is not in conformity with the rules, the execution is null and void (Bangkok Bank vs. Lee, supra.).

(4)     Requisites for discretionary execution:

(a)     There must be a motion filed by the prevailing party with notice to the adverse party;

(b)     There must be a hearing of the motion for discretionary execution;

(c)     There must be good reasons to justify the discretionary execution; and

(d)     The good reasons must be stated in a special order (Sec. 2, Rule 39).

 

How a judgment is executed (Sec. 4)

 

(1)     Judgments in actions for injunction, receivership, accounting and support, and such other judgments as are now or may hereafter be declared to be immediately executory, shall be enforceable after their rendition and shall not be stayed by an appeal taken therefrom, unless otherwise ordered by the trial court. on appeal therefrom, the appellate court in its discretion may make an order suspending, modifying, restoring or granting the injunction, receivership, accounting, or award of support. The stay of execution shall be upon such terms as to bond or otherwise as may be considered proper for the security or protection of the rights of the adverse party.

(2)     Judgments that may be altered or modified after becoming final and executory:

(a)     Facts and circumstances transpire which render its execution impossible or unjust;

(b)     Support;

(c)     Interlocutory judgment.

 

Execution by motion or by independent action (Sec. 6)

 

(1)     A final and executor judgment or order may be executed on motion within 5 years from the date of its entry. After the lapse of such time, and before it is barred by the statute of limitations, a judgment may be enforced by action. The revived judgment may also be enforced by motion within 5 years from the date of its entry and thereafter by action before it is barred by the statute of limitations.

 

Issuance and contents of a writ of execution (Sec. 8)

 

(1)     The writ of execution shall: (i) issue in the name of the Republic of the Philippines from the court which granted the motion; (ii) state the name of the court, the case number and title, the dispositive part of the subject judgment or order; and (iii) require the sheriff or other proper officer to whom it is directed to enforce the writ according to its term, in the manner hereinafter provided:

(a)     If the execution be against the property of the judgment obligor, to satisfy the judgment, with interest, out of the real or personal property of such judgment obligor;

(b)     If it be against real or personal property in the hands of personal representatives, heirs, devisees, legatees, tenants, or trustees of the judgment obligor, to satisfy the judgment, with interest, out of such property;

(c)     If it be for the sale of real or personal property, to sell such property, describing it, and apply the proceeds in conformity with the judgment, the material parts of which shall be recited in the writ of execution;

(d)     If it be for the delivery of the possession of real or personal property, to deliver the possession of the same, describing it, to the party entitled thereto, and to satisfy any costs, damages, rents, or profits covered by the judgment out of the personal property of the person against whom it was rendered, and if sufficient personal property cannot be found, then out of the real property; and

(e)     In all cases, the writ of execution shall specifically state the amount of the interest, costs, damages, rents, or profits due as of the date of the issuance of the writ, aside from the principal obligation under the judgment. For this purpose, the motion for execution shall specify the amounts of the foregoing reliefs sought by the movants.

 

Execution of judgment for money (Sec. 9)

 

(1)     In executing a judgment for money, the sheriff shall follow the following steps:

(a)     Demand from the judgment obligor the immediate payment of the full amount stated in the judgment including the lawful fees in cash, certified check payable to the judgment oblige or any other form of payment acceptable to him (Sec. 9). In emphasizing this rule, the SC held that in the execution of a money judgment, the sheriff is required to first make a demand on the obligor for the immediate payment of the full amount stated in the writ of execution (Sibulo vs. San Jose, 474 SCRA 464).

(b)     If the judgment obligor cannot pay all or part of the obligation in cash, certified check or other mode of payment, the officer shall levy upon the properties of the judgment obligor. The judgment obligor shall have the option to choose which property or part thereof may be levied upon. If the judgment obligor does not exercise the option, the officer shall first levy on the personal properties, if any, and then on the real properties if the personal properties are insufficient to answer for the personal judgment but the sheriff shall sell only so much of the property that is sufficient to satisfy the judgment and lawful fees (Sec. 9[b]).

 

Execution of judgment for specific acts (Sec. 10)

 

(1)     If the judgment requires a person to perform a specific act, said act must be performed but if the party fails to comply within the specified time, the court may direct the act to be done by someone at the cost of the disobedient party and the act when so done shall have the effect as if done by the party (Sec 10[a]). If the judgment directs a conveyance of real or personal property, and said property is in the Philippines, the court in lieu of directing the conveyance thereof, may by an order divest the title of any party and vest it in others, which shall have the force and effect of a conveyance executed in due form of law (Sec. 10[a], Rule 39).

 

Execution of special judgments (Sec. 11)

 

(1)     When a judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment.

 

Effect of levy on third persons (Sec. 12)

 

(1)     The levy on execution shall create a lien in favor of the judgment oblige over the right, title and interest of the judgment obligor in such property at the time of the levy, subject to liens and encumbrances then existing.

 

Properties exempt from execution (Sec. 13)

 

(1)     There are certain properties exempt from execution enumerated under Sec. 13, Rule 39:

(a)     The judgment obligor’s family home as provided by law, or the homestead in which he resides, and the land necessarily used in connection therewith;

(b)     Ordinary tools and implements personally used by him in his trade, employment, or livelihood;

(c)     Three horses, or three cows, or three carabaos, or other beasts of burden, such as the judgment obligor may select necessarily used by him in his ordinary occupation;

(d)     His necessary clothing and articles for ordinary personal use, excluding jewelry;

(e)     Household furniture and utensils necessary for housekeeping, and used for that purpose by the judgment obligor and his family, such as the judgment obligor may select, of a value not exceeding 100,000 pesos.

(f)      Provisions for individual or family use sufficient for four months;

(g)     The professional libraries and equipment of judges, lawyers, physicians, pharmacists, dentists, engineers, surveyors, clergymen, teachers, and other professionals, not exceeding 300,000 pesos;

(h)     One fishing boat and accessories not exceeding the total value of 100,000 pesos owned by a fisherman and by the lawful use of which he earns his livelihood;

(i)       So much of the salaries, wages, or earnings of the judgment obligor for his personal services with 4 months preceding the levy as are necessary for the support of his family;

(j)       Lettered gravestones;

(k)     Monies, benefits, privileges, or annuities accruing or in any manner growing out of any life insurance;

(l)       The right to receive legal support, or money or property obtained as such support, or any pension or gratuity from the government; and

(m)   Properties specially exempted by law (Sec. 13, Rule 39).

(2)     If the property mentioned in Sec. 13 is the subject of execution because of a judgment for the recovery of the price or upon judgment of foreclosure of a mortgage upon the property, the property is not exempt from execution.

 

Proceedings where property is claimed by third persons (Sec. 16)

 

(1)     If the property levied on is claimed by any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee, on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing the writ of execution. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

The officer shall not be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party claimant who filed a frivolous or plainly spurious claim.

When the writ of execution is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff or levying officer is sued for damages as a result of the levy, he shall be represented by the Solicitor General and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of such funds as may be appropriated for the purpose.

(2)     Requisites for  a claim by a third person:

(a)     The property is levied;

(b)     The claimant is a person other than the judgment obligor or his agent;

(c)     Makes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title; and

(d)     Serves the same upon the officer making the levy and the judgment obligee.

 

In relation to third party claim in attachment and replevin

 

(1)     Certain remedies available to a third person not party to the action but whose property is the subject of execution:

(a)     Terceria – By making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14, Rule 57). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed.

(b)     Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching vs. CA, 423 SCRA 356).

(c)     Intervention – This is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19).

(d)     Accion Reinvindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case.

 

Rules on Redemption

 

(1) Real property sold, or any part thereof sold separately, may be redeemed by the following persons:

(a)     Judgment obligor, or his successor in interest in the whole or any part of the property;

(b)     Redemptioner – a creditor having a lien by virtue of an attachment, judgment or mortgage on the property sold, or on some part thereof, subsequent to the lien under which the property was sold.

A mortgagee can be a redemptioner even if his mortgage has not yet matured, but his mortgage contract must have been executed after the entry of judgment.  Generally in judicial foreclosure sale, there is no right of redemption, but only equity of redemption. In sale of estate property to pay off debts of the estate, there is no redemption at all. Only in extrajudicial foreclosure sale and sale on execution is there the right of redemption.

(2)     The judgment obligor, or redemptioner, may redeem the property from the purchaser at any time within 1 year from the date of the registration of the certificate of sale by paying the purchaser (a) the amount of his purchase; (b) amount of any assessments or taxes which the purchaser may have paid after purchase; (c) if the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the judgment under which such purchase was made, the amount of such other lien; and (d) with 1 percent per month interest up to the time of redemption.

(3)     Property redeemed may again be redeemed within 60 days after the last redemption by a redemptioner, upon payment of: (a) the sum paid on the last redemption, with additional 2 percent; (b) the amount of any assessments or taxes which the last redemptioner may have paid thereon after redemption by him, with interest; (c) the amount of any liens held by said last redemptioner prior to his own, with interest.

(4)     The property may be again, and as often as a redemptioner is so disposed, similarly redeemed from any previous redemptioner within 60 days after the last redemption. Written notice of any redemption must be given to the officer who made the sale and a duplicate filed with the registry of deeds of the place. If any assessments or taxes are paid by the redemptioner or if he has or acquires any lien other than that upon which the redemption was made, notice thereof must in like manner be given to the officer and filed with the registry of deeds. If such notice be not filed, the property may be redeemed without paying such assessments, taxes, or liens.

(5)     Effect of Redemption. If the judgment obligor redeems, he must make the same payments as are required to effect a redemption by a redemptioner, whereupon, no further redemption shall be allowed and he is restored to his estate. The person to whom the redemption payment is made must execute and deliver to him a certificate of redemption acknowledged before a notary public or other officer authorized to take acknowledgments of conveyances of real property. Such certificate must be filed and recorded in the registry of deeds of the place in which the property is situated, and the registrar of deeds must note the record thereof on the margin of the record of the certificate of sale. The payments mentioned in this and the last preceding sections may be made to the purchaser or redemptioner, or for him to the officer who made the sale (Sec. 29).

(6)     Proof required of redemptioner. A redemptioner must produce to the officer, or person from whom he seeks to redeem, and serve with his notice to the officer a copy of the judgment or final order under which he claims the right to redeem, certified by the clerk of the court wherein the judgment or final order is entered; or, if he redeems upon a mortgage or other lien, a memorandum of the record thereof, certified by the registrar of deeds; or an original or certified copy of any assignment necessary to establish his claim; and an affidavit executed by him or his agent, showing the amount then actually due on the lien (Sec. 30).

(7)     Manner of using premises pending redemption. Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property (Sec. 31).

(8)     Rents, earnings and income of property pending redemption. The purchaser or a redemptioner shall not be entitled to receive the rents, earnings and income of the property sold on execution, or the value of the use and occupation thereof when such property is in the possession of a tenant. All rents, earnings and income derived from the property pending redemption shall belong to the judgment obligor until the expiration of his period of redemption (Sec. 32).

(9)     Deed and possession to be given at expiration of redemption period; by whom executed or given.  If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it.

Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor (Sec. 33).

 

Examination of judgments obligor when judgment is unsatisfied (Sec. 36)

 

(1)     When the return of a writ of execution issued against property of a judgment obligor, or any one of several obligors in the same judgment, shows that the judgment remains unsatisfied, in whole or in part, the judgment obligee, at any time after such return is made, shall be entitled to an order from the court which rendered the said judgment, requiring such judgment obligor to appear and be examined concerning his property and income before such court or before a commissioner appointed by it, at a specified time and place; and proceedings may thereupon be had for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. But no judgment obligor shall be so required to appear before a court or commissioner outside the province or city in which such obligor resides or is found.

 

Examination of obligor of judgment obligor (Sec. 37)

 

(1)     When the return of a writ of execution against the property of a judgment obligor shows that the judgment remains unsatisfied, in whole or in part, and upon proof to the satisfaction of the court which issued the writ, that person, corporation, or other juridical entity has property of such judgment obligor or is indebted to him, the court may, by an order, require such person, corporation, or other juridical entity, or any officer or member thereof, to appear before the court or a commissioner appointed by it, at a time and place within the province or city where such debtor resides or is found, and be examined concerning the same. The service of the order shall bind all credits due the judgment obligor and all money and property of the judgment obligor in the possession or in control of such person, corporation, or juridical entity from the time of service; and the court may also require notice of such proceedings to be given to any party to the action in such manner as it may deem proper.

 

Effect of judgment or final orders: Res Judicata (Sec. 47)

 

(1)     In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the truth of the testator or intestate;

(2)     In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and

(3)     In any other litigation between the same parties or their successors in interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.

 

Enforcement and effect of foreign judgments or final orders (Sec. 48)

 

(1)     In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and

(2)     In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successors in interest by a subsequent title.  In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

(3)     A foreign judgment on the mere strength of its promulgation is not yet conclusive, as it can be annulled on the grounds of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. It is likewise recognized in Philippine jurisprudence and international law that a foreign judgment may be barred from recognition if it runs counter to public policy (Republic vs. Gingoyon, GR 166429, June 27, 2006).

 

 

  1. III.         PROVISIONAL REMEDIES (Rules 57-61)

 

Nature of provisional remedies

 

(1)     Provisional remedies are temporary, auxiliary, and ancillary remedies available to a litigant for the protection and preservation of his rights while the main action is pending. They are writs and processes which are not main actions and they presuppose the existence of a principal action.

(2)     Provisional remedies are resorted to by litigants for any of the following reasons:

(a)     To preserve or protect their rights or interests while the main action is pending;

(b)     To secure the judgment;

(c)     To preserve the status quo; or

(d)     To preserve the subject matter of the action.

(3)     Provisional remedies specified under the rules are:

(a)     Preliminary attachment (Rule 57);

(b)     Preliminary injunction (Rule 58);

(c)     Receivership (Rule 59);

(d)     Replevin (Rule 60); and

(e)     Support pendent lite (Rule 61).

 

Jurisdiction over provisional remedies

 

(1)     The courts which grants or issues a provisional remedy is the court which has jurisdiction over the main action. Even an inferior court may grant a provisional remedy in an action pending with it and within its jurisdiction.

 

Preliminary Attachment (Rule 57)

 

(1)     Preliminary attachment is a provisional remedy issued upon order of the court where an action is pending to be levied upon the property of the defendant so the property may be held by the sheriff as security for the satisfaction of whatever judgment may be rendered in the case (Davao Light and Power, Inc. vs. CA, 204 SCRA 343).

(2)     When availed of and is granted in an action purely in personam, it converts the action to one that is quasi in rem. In an action in rem or quasi in rem, jurisdiction over the res is sufficient. Jurisdiction over the person of the defendant is not required(Villareal vs. CA, 295 SCRA 511).

(3)     Preliminary attachment is designed to:

(a)     Seize the property of the debtor before final judgment and put the same incustodial egis even while the action is pending for the satisfaction of a later judgment(Insular Bank of Asia and America vs. CA, 190 SCRA 629);

(b)     To enable the court to acquire jurisdiction over the res or the property subject of the action in cases where service in person or any other service to acquire jurisdiction over the defendant cannot be affected.

(4)     Preliminary attachment has three types:

(a)     Preliminary attachment – one issued at the commencement of the action or at any time before entry of judgment as security for the satisfaction of any judgment that may be recovered. Here the court takes custody of the property of the party against whom attachment is directed.

(b)     Garnishment – plaintiff seeks to subject either the property of defendant in the hands of a third person (garnishee) to his claim or the money which said third person owes the defendant. Garnishment does not involve actual seizure of property which remains in the hands of the garnishee. It simply impounds the property in the garnishee’s possession and maintains the status quo until the main action is finally decided. Garnishment proceedings are usually directed against personal property, tangible or intangible and whether capable of manual delivery or not.

(c)     Levy on execution – writ issued by the court after judgment by which the property of the judgment obligor is taken into custody of the court before the sale of the property on execution for the satisfaction of a final judgment. It is the preliminary step to the sale on execution of the property of the judgment debtor.

(5)     The grant of the remedy is addressed to the discretion of the court whether or not the application shall be given full credit is discretionary upon the court. in determining the propriety of the grant, the court also considers the principal case upon which the provisional remedy depends.

 

Grounds for issuance of writ of attachment

 

(1)     At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases:

(a)     In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors;

(b)     In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;

(c)     In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any party thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person;

(d)     In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action the action is brought, or in the performance thereof;

(e)     In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or

(f)      In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication (Sec. 1).

 

Requisites

 

(1)     The issuance of an order/writ of execution requires the following:

(a)     The case must be any of those where preliminary attachment is proper;

(b)     The applicant must file a motion (ex parte or with notice and hearing);

(c)     The applicant must show by affidavit (under oath) that there is no sufficient security for the claim sought to be enforced; that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims; and

(d)     The applicant must post a bond executed to the adverse party. This is called an attachment bond, which answers for all damages incurred by the party against whom the attachment was issued and sustained by him by reason of the attachment (Carlos vs. Sandoval, 471 SCRA 266).

 

Issuance and contents of order of attachment; affidavit and bond

 

(1)     An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the CA or the SC, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant’s demand, unless such party makes deposit or gives a bond in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant’s demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions (Sec. 2).

(2)     An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that  a sufficient cause of action exists, that the case is one of those mentioned in Section1, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond must be filed with the court before the order issues (Sec. 3).

 

Rule on prior or contemporaneous service of summons

 

(1)     No levy on attachment pursuant to the writ of preliminary attachment shall be enforced unless it is preceded, or contemporaneously accompanied, by the service of summons, together with a copy of the complaint, the application for attachment, the applicant’s affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines.

(2)     The requirement of prior or contemporaneous service of summons shall not apply in the following instances:

(a)     Where the summons could not be served personally or by substituted service despite diligent efforts;

(b)     The defendant is a resident of the Philippines who is temporarily out of the country;

(c)     The defendant is a non-resident; or

(d)     The action is one in rem or quasi in rem (Sec. 5).

 

Manner of attaching real and personal property; when property attached is claimed by third person

 

Sec. 7. Attachment of real and personal property; recording thereof. – Real and personal property shall be attached by the sheriff executing the writ in the following manner:

(a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof.

The registrar of deeds must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment;

(b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor;

(c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ;

(d) Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ;

(e) The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned.

If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property.

 

(10) Certain remedies available to a third person not party to the action but whose property is the subject of execution:

(e)     Terceria – by making an affidavit of his title thereto or his right to possession thereof, stating the grounds of such right or title. The affidavit must be served upon the sheriff and the attaching party (Sec. 14). Upon service of the affidavit upon him, the sheriff shall not be bound to keep the property under attachment except if the attaching party files a bond approved by the court. the sheriff shall not be liable for damages for the taking or keeping of the property, if such bond shall be filed.

(f)      Exclusion or release of property – Upon application of the third person through a motion to set aside the levy on attachment, the court shall order a summary hearing for the purpose of determining whether the sheriff has acted rightly or wrongly in the performance of his duties in the execution of the writ of attachment. The court may order the sheriff to release the property from the erroneous levy and to return the same to the third person. In resolving the application, the court cannot pass upon the question of title to the property with any character of finality but only insofar as may be necessary to decide if the sheriff has acted correctly or not (Ching vs. CA, 423 SCRA 356).

(g)     Intervention – this is possible because no judgment has yet been rendered and under the rules, a motion for intervention may be filed any time before the rendition of the judgment by the trial court (Sec. 2, Rule 19).

(h)     Accion Reinvindicatoria – The third party claimant is not precluded by Sec. 14, Rule 57 from vindicating his claim to the property in the same or in a separate action. He may file a separate action to nullify the levy with damages resulting from the unlawful levy and seizure. This action may be a totally distinct action from the former case.

 

Discharge of attachment and the counter-bond

 

(1)     If the attachment has already been enforced, the party whose property has been attached may file a motion to discharge the attachment. This motion shall be with notice and hearing. After due notice and hearing, the court shall discharge the attachment if the movants makes a cash deposit or files a counter-bond executed to the attaching party with the clerk of court where the application is made in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. Counter-bonds are replacements of the property formerly attached, and just as the latter, may be levied upon after final judgment. Note that the mere posting of counterbond does not automatically discharge the writ of attachment. It is only after the hearing and after the judge has ordered the discharge of attachment that the same is properly discharged (Sec. 12).

(2)     Attachment may likewise be discharged without the need for filing of a counter-bond. This is possible when the party whose property has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion, he proves that:

(a)     The attachment was improperly or irregularly issued or enforced; or

(b)     The bond of the attaching creditor is insufficient; or

(c)     The attachment is excessive and must be discharged as to the excess (Sec. 13); or

(d)     The property is exempt from execution, and as such is also exempt from preliminary attachment (Sec. 2).

(3)     Grounds for discharge of an attachment

(a)     Counterbond posted

(b)     improperly issued

(c)     irregularly issued or enforced

(d)     insufficient applicant’s bond

“Improperly” (e.g. writ of attachment was not based on the grounds in Sec. 1)

“Irregularly” (e.g. writ of attachment was executed without previous or contemporaneous service of summons

 

Satisfaction of judgment out of property attached

 

(1)     If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner:

(a)     By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment;

(b)     If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff’s hands, or in those of the clerk of the court;

(c)     By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amounts of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee (Sec. 15).

(2)     Order of satisfaction of judgment of attached property

(1)     Perishable or other property sold in pursuance of the order of the court;

(2)     Property, real or personal, as may be necessary to satisfy the balance;

(3)     collecting from debtors of the judgment obligor;

(4)     ordinary execution.

 

Preliminary Injunction (Rule 58)

 

Definitions and Differences: Preliminary Injunction and Temporary Restraining Order

 

(1)     A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction (Sec. 1).

(2)     As a provisional remedy, preliminary injunction aims to preserve the status quoor to prevent future wrongs in order to preserve and protect certain interests or rights during the pendency of the action (Cortez-Estrada vs. Heirs of Domingo, 451 SCRA 275 [2005]). The status quo is the last, actual, peaceable and uncontested situation which precedes a controversy. The injunction should not establish a new relation between the parties, but merely should maintain or re-establish the pre-existing relationship between them.

(3)     A writ of preliminary injunction remains until it is dissolved; a temporary restraining order (TRO) has a lifetime only of 20 days (RTC and MTC) or 60 days (Court of Appeals). A TRO issued by the Supreme Court shall be effective until further orders. A TRO is issued to preserve the status quo until the hearing of the application for preliminary injunction. The judge may issue a TRO with a limited life of 20 days from date of issue. If before the expiration of the 20 day period, the application for preliminary injunction is denied, the TRO would be deemed automatically vacated. If no action is taken by the judge within the 20 day period, the TRO would automatically expire on the 20th day by the sheer force of law, no judicial declaration to that effect being necessary (Bacolod City Water District vs. Labayen, 446 SCRA 110).

(4)     1998 Bar: A TRO is an order to maintain the status quo between and among the parties until the determination of the prayer for a writ of preliminary injunction. A writ of preliminary injunction cannot be granted without notice and hearing. A TRO may be granted ex parte if it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court in which the application for preliminary injunction was made my issue a TRO ex parte for a period not exceeding 20 days from service to the party sought to be enjoined.

 

Requisites

 

(1) A preliminary injunction or temporary restraining order may be granted only when:

(a)   The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and

(b)   Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued.

(c)   When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

However where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply.

(d)     The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff’s return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately (Sec. 4).

(e)     The applicant must establish that there is a need to restrain the commission or continuance of the acts complied of and if not enjoined would work injustice to the applicant (Barbajo vs. Hidden View Homeowners, Inc., 450 SCRA 315).

(f)      The plaintiff must further establish that he or she has a present unmistakable right to be protected; that the facts against which injunction is directed violate such right; and there is a special and paramount necessity for the writ to prevent serious damages. In the absence of proof of legal right and the injury sustained by the plaintiff, an order for the issuance of a writ of preliminary injunction will be nullified. Thus, where the plaintiff’s right is doubtful or disputed, a preliminary injunction is not proper. The possibility of irreparable damage without proof of an actual existing right is not a ground for preliminary injunction (Sps. Nisce vs. Equitable PCI Bank, Feb. 19, 2007).

 

Kinds of Injunction

 

(1)     Prohibitory – its purpose is to prevent a person from the performance of a particular act which has not yet been performed. Here, the status quo is preserved or restored and this refers to the last peaceable, uncontested status prior to the controversy.

(a)     Preliminary – secured before the finality of judgment.

(a)     Final – issued as a judgment, making the injunction permanent. It perpetually restrains a person from the continuance or commission of an act and confirms the previous preliminary injunction. It is one included in the judgment as the relief or part of the relief granted as a result of the action, hence, granted only after trial (Sec. 10), and no bond is required.

(2)     Mandatory – its purpose is to require a person to perform a particular positive act which has already been performed and has violated the rights of another.

(a)     Preliminary

(b)     Final

(2a) Requisites for the issuance of mandatory preliminary injunction

(a)     The invasion of the right is material and substantial;

(b)     The right of a complainant is clear and unmistakable;

(c)     There is an urgent and permanent necessity for the writ to prevent serious damage (Rivera vs. Florendo, 144 SCRA 643).

 

When writ may be issued

 

(1)     The complaint in the action is verified, and shows facts entitling the plaintiff to the relief demanded; and

(2)     The plaintiff files a bond which the court may fix, conditioned for the payment of damages to the party enjoined, if the court finds that the plaintiff is not entitled thereto(Sec. 4).

 

Grounds for issuance of preliminary injunction

 

(1)     The applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually; or

(2)     The commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

(3)     A party, court, agency or a person is doing, threatening or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual (Sec. 3).

 

Grounds for objection to, or for the dissolution of injunction or restraining order

 

(1)     The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavit of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified (Sec. 6).

(3)     (2) Grounds for objection to, or for motion of dissolution of, injunction or restraining order

(a)     Upon showing of insufficiency of the application;

(b)     Other grounds upon affidavit of the party or person enjoined;

(c)     Appears after hearing that irreparable damage to the party or person enjoined will be caused while the applicant can be fully compensated for such damages as he may suffer, and the party enjoined files a counterbond;

(d)     Insufficiency of the bond;

(e)     Insufficiency of the surety or sureties.

 

Duration of TRO

 

(1)     The lifetime of a TRO is 20 days, which is non-extendible (AM 02-02-07-SC).

 

In relation to RA 8975, Ban on issuance of TRO or Writ of Injunction in cases involving government infrastructure projects

 

(1)     Under PD 1818 and RA 8735, injunction is not available to stop infrastructure projects of the government including arrastre and stevedoring operations (Malayan Integrated Industries vs. CA, GR 101469, Sept. 4, 1992; PPA vs. vs. Pier 8 Arrastre and Stev edoring Services, 475 SCRA 426).

 

Rule on prior or contemporaneous service of summons in relation to attachment

 

(1)     It is not available where the summons could not be served personally or by substituted service despite diligent efforts or where the adverse party is a resident of the Philippines temporarily absent therefrom or is a non-resident thereof (Sec. 4).

 

Stages of Injunction

 

(1)     Seventy-two (72) hour Temporary Restraining Order

(a)     If the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury;

(b)     Issued by executive judge of a multi-sala court or the presiding judge of a single-sala court;

(c)     Thereafter must

1)       Serve summons and other documents

2)       Conduct summary hearing to determine whether the TRO shall be extended to 20 days until the application for preliminary injunction can be heard.

 

(2)     Twenty (20) day TRO

(a)     If it shall appear from the facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice;

(b)     If application is included in initiatory pleading:

1)       Notice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines;

2)       Raffled only after notice to and in the presence of the adverse party or the person to be enjoined.

(c)     Issued with summary hearing (to determine whether the applicant will suffer great or irreparable injury) within 24 hours after sheriff’s return of service and/or records are received by the branch selected by raffle;

(d)     Within 20-day period, the court must order said person to show cause why the injunction should not be granted, and determine whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order;

(e)     Including the original 72 hours, total effectivity of TRO shall:

1)       Not exceed 20 days, if issued by an RTC or MTC;

2)       Not exceed 60 days, if issued by the CA or a member thereof;

3)       Until further orders, if issued by the SC.

(f)      TRO is automatically vacated upon expiration of the period and without granting of preliminary injunction;

(g)     Effectivity is not extendible without need of any judicial declaration to that effect;

(h)     No court shall have authority to extend or renew the same on the same ground for which it was issued.

 

(3)     Preliminary Injunction

(a)     Hearing and prior notice to the party sought to be enjoined;

(b)     If application is included in initiatory pleading;

1)       Notice of raffle shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicant’s affidavit and bond, upon the adverse party in the Philippines.

2)       Raffled only after notice to and in the presence of the adverse party or the person to be enjoined

(c)     Applicant posts a bond

 

(4)     Final Injunction

(a)     Note that a bond is required only in preliminary injunctions, but is not required in TROs. After lapse of the 20 day TRO, the court can still grant a preliminary injunction. Note that irreparable injury is always a requisite in TROs. But in the 72 hour TRO, grave injustice must also be shown. In the 20 day TRO, the ground is great or irreparable injury (Paras v. Roura, 163 SCRA 1 [1988]). Without a preliminary injunction, a TRO issued by the CA expires without necessity of court action.

 

Receivership (Rule 59)

 

(1)     Receivership is a provisional remedy wherein the court appoints a representative to preserve, administer, dispose of and prevent the loss or dissipation of the real or personal property during the pendency of an action.

(2)     It may be the principal action itself or a mere provisional remedy; it can be availed of even after the judgment has become final and executory as it may be applied for to aid execution or carry judgment into effect.

 

Cases when receiver may be appointed

 

(1)     The party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, or materially injured unless a receiver be appointed to administer and preserve it;

(2)     In an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage;

(3)     After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect;

(4)     Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation (Sec. 1).

 

Requisites

 

(1)     Verified application;

(2)     Appointed by the court where the action is pending, or by the CA or by the SC, or a member thereof;

During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court or origin and the receiver appointed to be subject to the control of said court.

(3)     Applicant’s bond conditioned on paying the adverse party all damages he may sustain by the appointment of the receiver in case the appointment is without sufficient cause;

(4)     Receiver takes his oath and files his bond.

 

Requirements before issuance of an Order

 

(1)     Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages (Sec. 2).

 

General powers of a receiver

 

(1)     To bring and defend, in such capacity, actions in his own name

(2)     To take and keep possession of the property in controversy

(3)     To receive rents

(4)     To collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver

(5)     To compound for and compromise the same

(6)     To make transfer

(7)     To pay outstanding debts

(8)     To divide the money and other property that shall remain among the persons legally entitled to receive the same

(9)     To do such acts respecting the property as the court may authorize.

However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him (Sec. 6).

 

Two (2) kinds of bonds

 

(1) Applicant’s Bond (for appointment of receiver) – To pay the damages the adverse party may sustain by reason of appointment of receiver; and

(2) Receiver’s Bond (of the appointed receiver, aside from oath) – To answer for receiver’s faithful discharge of his duties (Sec. 2).

 

Termination of receivership

 

(1)     Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires (Sec. 8).

(2)     Receivership shall also be terminated when (a) its continuance is not justified by the facts and circumstances of the case (Samson vs. Araneta, 64 Phil. 549); or (b) then court is convinced that the powers are abused (Duque vs. CFI, Manila, 13 SCRA 420).

 

Replevin (Rule 60)

 

(1)     Replevin is a proceeding by which the owner or one who has a general or special property in the thing taken or detained seeks to recover possession in specie, the recovery of damages being only incidental (Am. Jur. 6).

(2)     Replevin may be a main action or a provisional remedy. As a principal action its ultimate goal is to recover personal property capable of manual delivery wrongfully detained by a person. Used in this sense, it is a suit in itself.

(3)     It is a provisional remedy in the nature of possessory action and the applicant who seeks immediate possession of the property involved need not be the holder of the legal title thereto. It is sufficient that he is entitled to possession thereof (Yang vs. Valdez, 177 SCRA 141).

 

When may Writ be Issued

 

(1)     The provisional remedy of replevin can only be applied for before answer. A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him (Sec. 1).

 

Requisites

 

(1)     A party praying for the provisional remedy must file an application for a writ of replevin. His application must be filed at the commencement of the action or at any time before the defendant answers, and must contain an affidavit particularly describing the property to which he entitled of possession.

(2)     The affidavit must state that the property is wrongfully detained by the adverse party, alleging therein the cause of the detention. It must also state that the property has not been destrained or taken for tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed incustodia legis. If it has been seized, then the affidavit must state that it is exempt from such seizure or custody.

(3)     The affidavit must state the actual market value of the property; and

(4)     The applicant must give a bond, executed to the adverse party and double the value of the property.

 

Affidavit and bond; Redelivery Bond

 

(1)     Affidavit, alleging:

(a)     That the applicant is the owner of property claimed, describing it or entitled to its possession;

(b)     That the property is wrongfully detained by the adverse party, alleging cause of its detention;

(c)     That the property has not been distrained or taken for tax assessment or fine or under writ of execution/attachment or placed under custodia legis or if seized, that it is exempt or should be released; and

(d)     The actual market value of the property.

(2)     Bond, which must be double the value of property, to answer for the return of property if adjudged and pay for such sum as he may recover from the applicant(Sec. 2).

(3)     It is required that the redelivery bond be filed within the period of 5 days after the taking of the property. The rule is mandatory (Yang vs. Valdez, 177 SCRA 141).

 

Sheriff’s duty in the implementation of the writ; when property is claimed by third party

 

(1)     Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same (Sec. 4).

(2)     If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicant’s bond or approves a new bond, of if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party (Sec. 6).

(3)     A 3rd party claimant may vindicate his claim to the property, and the applicant may claim damages against such 3rd party, in the same or separate action. A claim on the indemnity bond should be filed within 120 days from posting of such bond.

(4)     If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party claimant in the sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond.

The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such third-party claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action (Sec. 7).

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Bar Tip: CONFIDENCE!

Posted on March 13, 2012. Filed under: Bar Exam Tips & Guide | Tags: , , , |

CONFIDENCE!

An Interview with Dean Ricardo Lacson

Contributed by:

Atty. Glenn M. Mortel

(espogi4@yahoo.com)

With the best of spirits, the bar candidate should enter the examination roomconfident that he will not only pass it, but pass it he would with flying colors.

Thus declared former Dean Ricardo Lacson of the Philippine Law School.

As a matter of fact, the candidate should have had this confidence from the first moment he entered his freshman class in the law school.

Dean Lacson passed the bar the following year Manuel Roxas topped the examination in 1913.

He discussed the different factors that, in his opinion based on his experience, have helped him in preparing for the examination.

The first factor: SERIOUS PREPARATION.

Dean Lacson stressed the importance of beginning bar preparation from the candidate’s first day in the freshman year.

The trouble with students, they never take seriously their preparations while still in the law school. Many of them only begin to study law for the first time during pre-bar review classes after their graduation.

Cognizant of the very little time he has in his hands, the candidate now adopts measures that will enable him to stay late in the nights during the four or five months of preparation.

What happens?

The candidate has to resort to the taking of all conceivable medicine to make him stay awake practically all nights, Dean Lacson said. Added to this, he also takes plenty of coffee. Little does he realize the fact that these measures are very injurious to his health.

And they think by staying awake all nights they can cover grounds which, even in classroom work, they can never expect to cover, Dean Lacson pointed out. The result is that next morning when they wake up, their minds are all tired, less able to absorb what they read the night before.

Another factor that the candidate should consider as an important equipment to enable him to pass the bar examination is command of language.

In my time, Dean Lacson said, my reading of the law, the decisions of the court, has helped me a great deal in acquiring a better command of language, an indispensable factor in writing impressive answers.

Relative to the manner of answering bar questions, the PLS dean has this to say:

The candidate must read the questions very carefully before attempting to write down his answers. He has to make sure he understands what the questions really call for.

The next step is to find out how many questions are asked. Having determined this, he must apportion the time available in his hands proportionately to the number of questions.

The dean turned his attention to the biggest mistake that the candidates always commit in answering questions.

The examinees spend too much time on those questions they know so well and the net result is that they finally realize they have very little time left for the other problems.

Why do most students have faulty preparation in school?

Faulty method of instructions. Dean Lacson explained that most professors teach only as a sideline and therefore find little time to prepare. They ought to spend as much time or even more, in improving their teaching methods that the students could benefit much from them.

Sometimes, Dean Lacson complained, the professors don’t even know how to conduct their respective classes. Consequently, this contributes to the sad state of affairs relative to the training of students. Some of these professors do not even show their students that they know at least something about their subject matter.

In this way, he said, the students never learn anymore than what their professors know about their respective subject matters.

The remedy?

We expect to get good professors, of course, the dean said, those who really have the ability to impart legal knowledge. We are always willing to receive suggestions from others how to improve our method of instructions.

Lifted from: AttyRalph.Com

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Bar Tip: NEVER QUIT!

Posted on March 13, 2012. Filed under: Bar Exam Tips & Guide | Tags: , , , |

NEVER QUIT!

An Interview with Dean Vicente Abad Santos

Contributed by:

Atty. Glenn M. Mortel

(espogi4@yahoo.com)

No matter how disappointed you may be with your answers to questions on the first day of the bar examination, you should never make the unpardonable mistake of quitting.

This valuable piece of advice from former Dean Vicente Abad Santos of the College of Law, University of the Philippines, is addressed to all bar candidates, present or future.

The UP law dean, the youngest to occupy this distinguished position in the state university, cited the cases of some UP law graduates who quit after the first day of the examination because they thought their answers were no good.

Only the examiners can determine this, he pointed out.

Preparations should not begin after graduation but on the first day the candidate enters his freshman year in the law school.

What did he do after graduation day?

Dean Abad Santos immediately went on a two-week vacation from his codes and textbooks. The idea here, he explained, is to relax both mind and body in preparation for the review during the months prior to the actual examination day. This, according to him, will enable the candidate to conserve as much energy for the grind that is to follow so that on the first day of the examination, he will not be exhausted and confused.

He recommends no hard and fast rules on schedules with respect to the review of the eight subjects given in the bar examination.

First, the UP law dean suggests, the candidate should go on leave from work if he belongs to the working gentry.

The review should be made easy the first three months after graduation, one subject after another, he said. This review will be intensified only during the month prior to the examination.

Dean Abad Santos has no objection if the candidate should go to a movie the afternoon prior to the actual examination day. He also suggests that the candidate should sleep early so that when he wakes up the following day, he feels fresh and ready for the battle.

After any given examination, the candidate should never worry about his answers any longer, the UP law dean said. After all, there is nothing he could do about changing them. Rather, he should worry about the next examination.

Another advice Dean Abad Santos wants to pass on to bar candidates is that they should never leave any question unanswered.

If they are at a loss as to what specific legal provisions or doctrine to use in answering problems, the only alternative left for them is to use their own common sense.

More Bar Tips: AtyRalph.Com

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Bar Tip: Great Formula in Passing the Bar

Posted on March 13, 2012. Filed under: Bar Exam Tips & Guide | Tags: , , |

THE GREAT FORMULA

IN PASSING THE BAR EXAMINATIONS

Contributed by:

Atty. Glenn M. Mortel

(espogi4@yahoo.com)

“There is nothing that can help a bar examinee most than a constant and intensive study of the provisions of the various codes and the interpretation and application thereof by the Supreme Court in its decisions. By study is meant, that the provisions must be correctly understood and the thought or words thereof put to memory. After a chapter, for example, has been studied, the next one should be studied next, and after this, a review of all that has already been studied re-reviewed, to keep the subject matter and the provisions fresh in mind.” - Alejo Labrador

  1. Actual preparation for the bar examination starts from the first day a law student attended class during the first year in the law school.

  2. The blooming secret in passing the bar examination is this: Present good answers that will make the examiners take notice. Good answers anchored upon logical reasoning, written in readable English and more importantly, justified by appropriate legal authority.

  3. If the candidates are at a loss as to what specific legal provisions or case doctrines to use in answering problems, the only alternative left for them is to use their own common sense.

  4. The key to passing the bar examinations is contained in one word: ARTICULATION. Articulation is expressive of the following basic fundamentals: good language, impressive presentation, logical reasoning and substantial background knowledge of law and procedure.
  5. The examinee who has a fairly good command of English, assuming that he is prepared in all other matters, stands definitely with a much better chance of passing.
  6. The responsive character of a given answer would depend to a great extent, on command of good language, logical reasoning and impressive presentation. This objective of preparing impressive and responsive answers can only be achieved by constant practice.
  7. Get this straight right now. Passing the bar examination has been, still is, and will always be a difficult proposition!
  8. No one can really help you pass the bar examination but yourself.
  9. The greatest blooming secret of passing the bar examination is and will always be: PREPARATION! Not just any kind of preparation, but proper, sound and systematic preparation.
  10. Systematic review can only be done by the use of what we call scheduleswhich the candidate must follow vigorously to the letter if he expects to attain the best results.
  11. There will be times when you become sleepy while reviewing but never for one moment, tell yourself: Man, this review can wait! Do not be stupid. Always remind yourself that time is of the essence and is decidedly running too short for you.
  12. Force yourself to read, understand and absorb what law you reviewed. Otherwise, all your efforts will go to waste.
  13. Love and review cannot mix in the business of preparing for the bar examination.
  14. Early to bed, early to rise, that is the way to make a man healthy, wealthy and wise.
  15. morning shower is a must.
  16. Never stay up late to the wee hours of morning, cramming law into your head. This would not do you any good. Remember, you have to conserve as much energy as you possibly can.
  17. Remember, keeping your health in good running condition is just as important as reviewing and passing the bar examination.
  18. Good handwriting is decidedly a great factor in passing the bar examination.
  19. To beat time, never write kilometric answers.
  20. By far the most important tool that the bar candidate could equip himself with which to tackle the examination that is inherently personal to him iscommand of written English.
  21. You have to write simple, grammatically correct English if you want to hurdle the examination.
  22. Presentation of answers that are not only good but logical, full of substance and supported by law and other authorities, are gems to the examiner, whether he has a good or black heart.
  23. Make your motto now: Stick to codal provisions! Compliment this with doctrines laid down in recent decisions of the Supreme Court.
  24. Impressive answers showing the candidates reasoning faculty is what the examiners want to read in your examination notebooks.
  25. Ability to retain your understanding of the substance of the law through efforts of study is more desirable quality to possess than mere ability to memorize legal provisions.
  26. Memorizing a particular provision of law word for word but without understanding it and its various implications is a lot of wasted effort.
  27. Never fail to read the newspapers when you are preparing for the bar examination. Read newspapers from 20 to 30 minutes every day.
  28. You can never expect to pass the bar examination without preparation.
  29. Predicting probable questions based on important principles or provisions of law is the safer method of speculating what the examiners are likely to ask in their examinations.
  30. Never depend on tips for your passing. But never brush these tips aside as nothing but trash. They may likely cause your downfall. Never, however, bank too much on them.
  31. Cheating is one sure way to endanger your future career as a prospective member of the legal profession. Never commit such atrocious act like cheating in the bar examination. It never pays. Depend on your own capabilities. Fight your battle royale on a high plane!
  32. Fountain or sign pens are really the most important equipment in bar examination. Never start for the examination without bringing along with youtwo or more fountain or sign pens.
  33. Like the weather, examiners are absolutely a bunch of unpredictable fellows, capable of asking unpredictable questions.
  34. Do not try to memorize 50 definitions or distinctions in any given time. Two or three will do.
  35. The real secret in remembering the matters contained in an enumeration is the use of keywords. Make your keywords on enumerations you consider important.
  36. Never leave a blank in an enumeration! However, if you use the letters a, b, c, etc. for numbers in the enumeration, so much the better. Ten to one, the examiner may not count his fingers. Make the first four in the enumeration definitely good.
  37. The bar candidate should do well to be always on guard against catchy questions capable of being answered in a number of ways, e.g. What is a complaint? The perfect answer should include both definitions in criminal and civil procedure.
  38. Never be content to answer questions with a mere yes or no. You must, at all times, give justification why your answer is a yes or no. Unless, of course, the examiner qualifies his question with instruction enclosed in parenthesis like: (Answer with a yes or no only).
  39. Always determine the real facts (examiners have the bad habit of including irrelevant facts to confuse you) and the issue or issues in controversy. Which side you take, always justify your side with reasons based on law, rule, equity and justice. Whatever your answer may be, provided it is written in legible language, the examiner will never deny you the corresponding credit you deserve.
  40. Always remember, make efforts to frame your answers so that they areresponsive to the questions. Never beat around the bush. Go right straight ahead with your answer. Avoid citations if and when you are notabsolutely sure about them. The shorter the answers are, the more direct, the better. Avoid display of flowery expressions which are complicated by legal verbosity. All you need are sensible, direct and reasonable answers that are responsive to the questions.
  41. Legal knowledge is not enough to solve a particular legal issue. What is important is ability to apply this knowledge to the solution of legal controversies.
  42. The most convenient method of tackling problem questions is to present immediately the conclusion of a given answer. Practice, practice, constant practice will help the bar candidate write good answers that examiners will give favorable credit.
  43. The technique of writing down answers responsive to questions is a matter that the candidate must learn as a matter of imperative necessity.
  44. Brevity and directness when done properly could make an answer both effective and impressive. However, when overdone to a point where the ideas sought to be conveyed becomes vague and difficult to understand, they become a liability.
  45. Never forget that every candidate is a potential bar topnotcher.
  46. So, if you are a candidate just preparing for the bar examination, whose chances of passing are quite problematical, just limit your ambition for the present to just working hard to obtain a 75 percent in the great battle of your life.
  47. Take comfort in this: That even those who become lawyers by “just luck”, are making good in the practice of law. Nothing can really put a determined man down.
  48. In your preparation for the greatest battle of your life, call upon Him who is the source of all knowledge, wisdom and understanding. In deep humility, bended knees and tears, He will make all things beautiful in His time.Victory belongs to the most persevering!

Note:

All excerpts, except the last (No. 48), were taken by Atty. GLENN M. MORTEL from the book “SECRETS ON HOW TO PASS THE BAR EXAMINATION” by Dean Wenceslao G. Laureta, 1990 edition.

Lifted from: AttyRalph.Com

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